A visitation room in a private detention facility in rural Louisiana. Cinderblock walls, fluorescent lights, two plastic chairs bolted to the floor. Elena is on one side. A lawyer who drove three hours from New Orleans is on the other. They have ninety minutes. Elena has eight months until the hearing that decides whether she gets asylum or gets sent back to Honduras. The evidence she needs to prove her case is in a town she can't safely call into, held by family members who might be at risk just from gathering it.
In the second part of their immigration deep dive — and the final episode of Season 2 — Gwen and Marc move from the machinery to the person standing inside it:
- Why representation matters more in immigration than anywhere else in the federal system — represented asylum seekers win at several times the rate of unrepresented ones, and unrepresented detained respondents face denial rates around ninety percent
- The Sixth Amendment gap: immigration removal is classified as civil, not criminal, so there's no right to appointed counsel. If you can't find a lawyer and the pro bono organizations are full, you represent yourself against a trained government attorney through an interpreter
- How detention structurally degrades the case before the hearing happens — bond decided in a ten-minute video proceeding, evidence that can't be gathered from inside a facility, and the same docket clock running whether you're preparing from a lawyer's office or a monitored phone booth
- The constitutional floor that most people assume exists and doesn't: plenary power from the 1889 Chinese Exclusion Case, Thuraissigiam's holding that someone apprehended twenty-five yards inside the border has essentially no due process right to judicial review, and a 2025 executive order testing whether that logic extends to anyone anywhere in the country who can't prove two years of presence
- Why you don't have to disagree with the doctrine to be troubled by the outcomes — strict or generous, the law is supposed to apply the same way to the same facts, and the data says it doesn't
Next season: judicial review. What happens when this finally gets to court — and why it's not the rescue mechanism people imagine.
00:00:14 --> 00:00:17 Hello, and welcome to Administrative Remedies,
00:00:17 --> 00:00:19 because you can't fix what you don't understand.
00:00:19 --> 00:00:21 Brought to you in part by the University of Tulsa
00:00:21 --> 00:00:24 College of Law. I'm Gwendolyn Savitz, an associate
00:00:24 --> 00:00:26 professor here at TU and the associate dean of
00:00:26 --> 00:00:28 research and intellectual life. And I'm Mark
00:00:28 --> 00:00:31 Rourke. I'm the dean of the College of Law. We'll
00:00:31 --> 00:00:33 be breaking down complex doctrines with real
00:00:33 --> 00:00:35 -life analogies and examples to demystify the
00:00:35 --> 00:00:37 world of administrative law for everyone trying
00:00:37 --> 00:00:39 to understand how government actually works.
00:00:40 --> 00:00:41 Agencies are the main way the federal government
00:00:41 --> 00:00:44 gets things done. It's not through Congress for
00:00:44 --> 00:00:46 reasons we'll be addressing over the course of
00:00:46 --> 00:00:49 this series. All right, let's pick up where we
00:00:49 --> 00:00:51 were when we were talking about immigration.
00:00:51 --> 00:00:54 Picture a visitation room in a private detention
00:00:54 --> 00:00:58 facility in rural Louisiana. We've got cinderblock
00:00:58 --> 00:01:01 walls, fluorescent lights, two plastic chairs
00:01:01 --> 00:01:02 bolted to the floor on either side of a metal
00:01:02 --> 00:01:06 table. We have Elena on one side and a lawyer
00:01:06 --> 00:01:08 who drove three hours from New Orleans on the
00:01:08 --> 00:01:11 other side. They have 90 minutes. Elena has eight
00:01:11 --> 00:01:14 months until her merits hearing. Then that's
00:01:14 --> 00:01:15 the hearing that decides whether she gets asylum
00:01:15 --> 00:01:18 or is going to be sent back to Honduras. In those
00:01:18 --> 00:01:20 90 minutes, the lawyer needs to learn her story,
00:01:20 --> 00:01:23 identify the social group theory, figure out
00:01:23 --> 00:01:25 what corroborating evidence exists and where,
00:01:25 --> 00:01:28 and explain to her what's about to happen. And
00:01:28 --> 00:01:30 the lawyer, this is a long drive, probably won't
00:01:30 --> 00:01:33 be coming back for at least six weeks. And the
00:01:33 --> 00:01:36 evidence she needs to prove her specific case,
00:01:36 --> 00:01:39 that's all back in Honduras. Right. So there's
00:01:39 --> 00:01:41 going to be some stuff produced by our government
00:01:41 --> 00:01:43 that's available to everybody. But what won't
00:01:43 --> 00:01:45 be available is the stuff that was specific to
00:01:45 --> 00:01:48 her. The neighbor who saw the assault, the death
00:01:48 --> 00:01:50 certificate, the medical records from a clinic
00:01:50 --> 00:01:53 in town, the threats that came in over the phone.
00:01:53 --> 00:01:56 The evidence is in a country she fled in a town
00:01:56 --> 00:01:59 she potentially can't safely call into and would
00:01:59 --> 00:02:01 have to be gathered by family members who themselves
00:02:01 --> 00:02:04 might be at risk just from gathering it. None
00:02:04 --> 00:02:06 of that's in the visitation room. OK, so last
00:02:06 --> 00:02:09 time we walked through the machinery, the backlog,
00:02:09 --> 00:02:13 the asylum framework, the AG certification, Jackler
00:02:13 --> 00:02:16 and at -will immigration. Yeah. So today we're
00:02:16 --> 00:02:18 looking more at one person inside that machinery
00:02:18 --> 00:02:21 because judge assignment definitely matters.
00:02:22 --> 00:02:24 It's a huge factor. But there are a couple of
00:02:24 --> 00:02:27 other huge ones. One is whether you have a lawyer
00:02:27 --> 00:02:29 and the other one is whether you're in detention
00:02:29 --> 00:02:30 while you're trying to put your case together.
00:02:31 --> 00:02:34 OK, so two more representation and then detention.
00:02:35 --> 00:02:38 Right. So on both of these, immigration is harder
00:02:38 --> 00:02:40 than anywhere else in the federal system. Representation
00:02:40 --> 00:02:43 drives outcomes everywhere in adjudication. We
00:02:43 --> 00:02:45 already talked about that with Social Security,
00:02:45 --> 00:02:47 but there are a couple important differences
00:02:47 --> 00:02:49 here. Like what? Represented asylum seekers win
00:02:49 --> 00:02:52 at several times the rates of unrepresented ones
00:02:52 --> 00:02:55 in non -detained cases. And if they're detained,
00:02:56 --> 00:02:58 which we're going to be talking about soon, that
00:02:58 --> 00:03:01 representation rate matters even more. Unrepresented
00:03:01 --> 00:03:05 denial rate can be 90 percent. So several times
00:03:05 --> 00:03:09 the rate, we're calling that the same adjudication
00:03:09 --> 00:03:12 system? Yeah. The doctrine doesn't care whether
00:03:12 --> 00:03:15 you have a lawyer, but the outcome can care enormously.
00:03:15 --> 00:03:20 So the type of adjudication? This was comparing
00:03:20 --> 00:03:23 immigration hearings to Social Security hearings.
00:03:23 --> 00:03:26 Remember, Social Security hearings, we had an
00:03:26 --> 00:03:28 inquisitorial judge model where the judge was
00:03:28 --> 00:03:31 supposed to be helping develop the facts. Immigration
00:03:31 --> 00:03:34 hearings are adversarial. So there is a DHS attorney
00:03:34 --> 00:03:37 across the room, a government lawyer whose job
00:03:37 --> 00:03:39 is to present the case for removal, to cross
00:03:39 --> 00:03:41 -examine the respondent and to argue against
00:03:41 --> 00:03:45 asylum. So in Social Security, there's no opposing
00:03:45 --> 00:03:47 counsel. Again, the judge is supposed to be helping
00:03:47 --> 00:03:50 develop the record. But in immigration, an unrepresented
00:03:50 --> 00:03:53 immigrant doesn't just lack a lawyer. They're
00:03:53 --> 00:03:56 actively facing a lawyer. And often they're not
00:03:56 --> 00:03:58 going to speak English. Right. And then things
00:03:58 --> 00:04:00 get even worse because now they'll be answering
00:04:00 --> 00:04:02 questions through an interpreter and they'll
00:04:02 --> 00:04:04 be doing it about traumatic events while government
00:04:04 --> 00:04:06 lawyers trying to find inconsistencies in their
00:04:06 --> 00:04:10 story. And that translator alone can introduce
00:04:10 --> 00:04:13 problems. So the witness might say one word in
00:04:13 --> 00:04:17 Spanish and the interpreter might say a slightly
00:04:17 --> 00:04:19 different variation that might be different than
00:04:19 --> 00:04:22 what a previous interpreter said. And the DHS
00:04:22 --> 00:04:24 attorney can pull the credible fear transcript
00:04:24 --> 00:04:29 and accuse them of. changing the facts because
00:04:29 --> 00:04:31 now there's a contradiction in the record. So
00:04:31 --> 00:04:33 the respondent doesn't know what happened. And
00:04:33 --> 00:04:35 the judge has to decide whether that inconsistency
00:04:35 --> 00:04:38 is because of their credibility or because of
00:04:38 --> 00:04:40 translation issues. And with a lawyer in the
00:04:40 --> 00:04:42 room representing the immigrant. So if we have
00:04:42 --> 00:04:45 a lawyer in there doing this, the lawyer can
00:04:45 --> 00:04:47 object. The lawyer can ask the interpreter to
00:04:47 --> 00:04:50 clarify. They know what was in the original transcript.
00:04:50 --> 00:04:54 They can help make sure that. If they're really
00:04:54 --> 00:04:56 trying to say the same thing, that that's clear
00:04:56 --> 00:04:59 to everybody in the room, they can redirect on
00:04:59 --> 00:05:01 the alleged inconsistency, and they can help
00:05:01 --> 00:05:04 put the credible fear transcript in context.
00:05:05 --> 00:05:07 Without a lawyer, the respondent is sitting next
00:05:07 --> 00:05:09 to an interpreter that they can't evaluate, listening
00:05:09 --> 00:05:12 to questions they didn't anticipate, with a government
00:05:12 --> 00:05:14 attorney building a credibility case in front
00:05:14 --> 00:05:18 of a judge who has 3 cases waiting. That's
00:05:18 --> 00:05:21 the room we're in. In a criminal courtroom, somebody
00:05:21 --> 00:05:24 would have been appointed for her by now. Right.
00:05:24 --> 00:05:27 But unfortunately for her, in immigration cases,
00:05:27 --> 00:05:29 there's no right to appointed counsel. So the
00:05:29 --> 00:05:31 Sixth Amendment right applies in criminal cases.
00:05:32 --> 00:05:34 Immigration removal is considered a civil procedure.
00:05:35 --> 00:05:37 Respondents have what the statute calls a privilege
00:05:37 --> 00:05:40 of counsel at no expense to the government. They
00:05:40 --> 00:05:42 can hire a lawyer or they can try and find a
00:05:42 --> 00:05:44 pro bono one, but the government will not be
00:05:44 --> 00:05:47 providing one. If you can't afford one and the
00:05:47 --> 00:05:49 pro bono organizations in your area are full,
00:05:49 --> 00:05:51 you're going to be representing yourself. Against
00:05:51 --> 00:05:54 a trained government attorney through an interpreter
00:05:54 --> 00:05:57 in front of a judge whose grant rate may be 4%.
00:05:57 --> 00:06:00 Right. And again, the stakes of losing here aren't
00:06:00 --> 00:06:04 loss of a benefit. They are removal to the country
00:06:04 --> 00:06:06 that this person originally fled. That's the
00:06:06 --> 00:06:08 line that separates immigration from every other
00:06:08 --> 00:06:11 adjudication system we've covered. In disability,
00:06:11 --> 00:06:14 losing means not getting benefits. That's devastating.
00:06:14 --> 00:06:16 It really is. But the claimant is still staying
00:06:16 --> 00:06:19 here. In immigration asylum cases, losing means
00:06:19 --> 00:06:21 going back to the country you're saying you fled
00:06:21 --> 00:06:24 because you had a well -founded fear of persecution
00:06:24 --> 00:06:27 there. The risk that your asylum claim was actually
00:06:27 --> 00:06:30 correct and you will be in major danger if you
00:06:30 --> 00:06:32 return is the consequence of getting the answer
00:06:32 --> 00:06:34 wrong here. So the premise of an asylum claim
00:06:34 --> 00:06:36 is that the country is dangerous to this person.
00:06:37 --> 00:06:40 The consequence of denial is returning them to
00:06:40 --> 00:06:43 that country. So we're building an adjudication
00:06:43 --> 00:06:45 system whose error costs in one direction are
00:06:45 --> 00:06:48 exposure to the persecution we said we don't
00:06:48 --> 00:06:50 want to expose people to. Yes. So that's the
00:06:50 --> 00:06:53 structure. And the Supreme Court has said it's
00:06:53 --> 00:06:55 constitutional. It would seem like those are
00:06:55 --> 00:06:57 pretty high stakes, though. I mean, life and
00:06:57 --> 00:07:00 death, sometimes literally, should trigger more
00:07:00 --> 00:07:04 procedural protection, not less. That could be
00:07:04 --> 00:07:07 the intuition, but the doctrine very clearly
00:07:07 --> 00:07:09 cuts the other way. The Constitution's procedural
00:07:09 --> 00:07:11 floor for immigration cases is lower than the
00:07:11 --> 00:07:13 floor for someone losing Social Security benefits.
00:07:14 --> 00:07:17 Wow. Right. Goldberg v. Kelly says you can't
00:07:17 --> 00:07:19 terminate welfare benefits without a pre -termination
00:07:19 --> 00:07:21 hearing. We've talked about it three or four
00:07:21 --> 00:07:24 times this season that welfare, cash assistance,
00:07:24 --> 00:07:27 the court treats it as serious enough to demand
00:07:27 --> 00:07:29 a real hearing with confrontation rights before
00:07:29 --> 00:07:33 the government takes it away. And asylum, where
00:07:33 --> 00:07:35 the alternative is removal to a country we've
00:07:35 --> 00:07:38 conceded, may persecute the person, gets less.
00:07:38 --> 00:07:43 Yeah, less and not by a little. Two reasons for
00:07:43 --> 00:07:45 this. They're both still good law. The first
00:07:45 --> 00:07:48 is plenary power. So if we go back to the Chinese
00:07:48 --> 00:07:52 exclusion case in 1889, the court held that Congress's
00:07:52 --> 00:07:54 authority over who may enter the country is something
00:07:54 --> 00:07:57 close to absolute. It's largely beyond the kind
00:07:57 --> 00:07:59 of constitutional scrutiny that would apply to
00:07:59 --> 00:08:02 almost any other federal action affecting someone
00:08:02 --> 00:08:04 this seriously. And the court is continuing to
00:08:04 --> 00:08:07 chip away at this over the decades, but it's
00:08:07 --> 00:08:09 never overruled the foundational case. That doctrine
00:08:09 --> 00:08:12 is still the starting point. So what's the second?
00:08:12 --> 00:08:14 All right. This is the line between people inside
00:08:14 --> 00:08:16 the country with established ties and people
00:08:16 --> 00:08:19 seeking entry. Someone who's been here for years,
00:08:19 --> 00:08:22 who's working, raising kids, gets more due process
00:08:22 --> 00:08:24 protection than someone who's apprehended at
00:08:24 --> 00:08:27 the border. There is a recent landmark case.
00:08:27 --> 00:08:32 It was in 2020. So here. They responded across
00:08:32 --> 00:08:34 the southern border. They were apprehended within
00:08:34 --> 00:08:37 25 yards. They sought asylum and they were placed
00:08:37 --> 00:08:40 in expedited removal. The court said that there's
00:08:40 --> 00:08:42 essentially no due process right to judicial
00:08:42 --> 00:08:45 review beyond what the statute provided. 25 yards
00:08:45 --> 00:08:47 inside the country, but the Constitution treats
00:08:47 --> 00:08:51 him as if he's still outside of it. Functionally,
00:08:51 --> 00:08:55 yes. So the courts treating recent unlawful entrants
00:08:55 --> 00:08:57 seeking initial admission as if they were standing
00:08:57 --> 00:08:59 at the border. Whatever process Congress gave
00:08:59 --> 00:09:02 them by statute is the process they get. Here's
00:09:02 --> 00:09:04 the key part. Okay. As applied in this case,
00:09:04 --> 00:09:07 the statute, which limits the habeas review obtainable
00:09:07 --> 00:09:10 by non -cis and detained for expedited removal,
00:09:10 --> 00:09:13 does not violate the suspension or due process
00:09:13 --> 00:09:16 clauses. So a statute restricting habeas review
00:09:16 --> 00:09:19 for someone 25 yards inside the border doesn't
00:09:19 --> 00:09:22 violate due process. That's the holding. Right.
00:09:22 --> 00:09:26 So that's what it meant in 2020. And the administration
00:09:26 --> 00:09:29 is testing how far that distinction can stretch.
00:09:29 --> 00:09:34 Stretch how? So January 2025, there was an executive
00:09:34 --> 00:09:37 order that directed DHS to expand expedited removal
00:09:37 --> 00:09:40 to anyone. anywhere in the United States who
00:09:40 --> 00:09:42 can't prove they've been in the country for more
00:09:42 --> 00:09:46 than two years. Before that, the agency had limited
00:09:46 --> 00:09:48 expedited removal to people who were apprehended
00:09:48 --> 00:09:50 within 100 miles of the border, which is still
00:09:50 --> 00:09:53 way more than 25 yards, but way less than the
00:09:53 --> 00:09:57 whole country, and within 14 days of entry. So
00:09:57 --> 00:10:01 this 2025 expansion took it to anywhere in the
00:10:01 --> 00:10:02 country and stretched the entry window from two
00:10:02 --> 00:10:09 weeks to two years. So to Rassi's logic, 25 yards
00:10:09 --> 00:10:13 from the border, treated as it's standing outside
00:10:13 --> 00:10:15 the country, is being applied to someone picked
00:10:15 --> 00:10:18 up in a workplace in Ohio who has been here for
00:10:18 --> 00:10:20 23 months. Right. Assuming they're undocumented.
00:10:21 --> 00:10:23 When this was issued, the D .C. District Court
00:10:23 --> 00:10:27 enjoined it and the D .C. Circuit declined to
00:10:27 --> 00:10:29 stay the injunction. The panel said the government
00:10:29 --> 00:10:31 wasn't likely to succeed on the due process question.
00:10:32 --> 00:10:34 And the underlying question is exactly the one
00:10:34 --> 00:10:37 we just walked through. How far inside the country
00:10:37 --> 00:10:42 does to racism essentially have no due process
00:10:42 --> 00:10:44 protection? And how far does that rule reach?
00:10:45 --> 00:10:47 Right. That's the question. And for now, the
00:10:47 --> 00:10:50 D .C. Circuit has said not all the way. There
00:10:50 --> 00:10:52 is some line and someone who's been physically
00:10:52 --> 00:10:54 present in the United States for months or even
00:10:54 --> 00:10:56 years, who's been building a life, is on the
00:10:56 --> 00:10:58 protected side of it, even if they entered unlawfully.
00:10:59 --> 00:11:01 So there's at least some procedural floor still,
00:11:01 --> 00:11:06 even if it moves opposite to the stakes. Higher
00:11:06 --> 00:11:10 stakes create a thinner floor. But that's an
00:11:10 --> 00:11:12 inversion of what most people would assume the
00:11:12 --> 00:11:15 Constitution does. Right. That's potentially
00:11:15 --> 00:11:17 counterintuitive. And there's also another recent
00:11:17 --> 00:11:21 shift. So the plenary power goes back to 1889.
00:11:22 --> 00:11:24 Goldberg was decided in 1970. The courts had
00:11:24 --> 00:11:27 decades to try and bring these two. lines of
00:11:27 --> 00:11:31 cases into agreement, and it hasn't. Okay, but
00:11:31 --> 00:11:33 plenary power isn't just doctrine. It tracks
00:11:33 --> 00:11:37 a serious view that controlling entry is a sovereign
00:11:37 --> 00:11:39 function and that people who arrive without authorization
00:11:39 --> 00:11:42 aren't entitled to the same procedural package
00:11:42 --> 00:11:45 a citizen gets. Someone who thinks no one should
00:11:45 --> 00:11:48 be allowed in without going through the legal
00:11:48 --> 00:11:51 process listens to this episode and says, fine,
00:11:51 --> 00:11:54 the system is harsh. That's the design. Asylum
00:11:54 --> 00:11:57 is generous on the margin. The Constitution lets
00:11:57 --> 00:12:00 Congress draw the line where it draws it. What
00:12:00 --> 00:12:03 do you think about that? That view is definitely
00:12:03 --> 00:12:05 real and it is held in good faith by a lot of
00:12:05 --> 00:12:08 people and potentially has constitutional support
00:12:08 --> 00:12:11 under what the court said. That's basically the
00:12:11 --> 00:12:14 whole idea of plenary power. You don't have to
00:12:14 --> 00:12:16 think the doctrine is wrong to be upset by what's
00:12:16 --> 00:12:18 going on. The question we're looking at is narrower.
00:12:19 --> 00:12:22 It's given the statute that Congress wrote, which
00:12:22 --> 00:12:24 does grant asylum, which sets up the adjudication
00:12:24 --> 00:12:27 system, which promises individualized hearings.
00:12:27 --> 00:12:30 Is this system actually delivering what the statute
00:12:30 --> 00:12:32 says it should? You can think the statute should
00:12:32 --> 00:12:34 be narrower and still want the adjudication under
00:12:34 --> 00:12:37 the existing statute to be accurate. Strict or
00:12:37 --> 00:12:39 generous, the law is supposed to apply the same
00:12:39 --> 00:12:41 way to the same facts. That's not a policy claim.
00:12:42 --> 00:12:44 That's a rule of law claim. So the critique works
00:12:44 --> 00:12:47 regardless of where you stand on how many people
00:12:47 --> 00:12:50 should be admitted. Right. If you want fewer
00:12:50 --> 00:12:52 grants, you want the denials to be the right
00:12:52 --> 00:12:55 denials. If you want more people in, you still
00:12:55 --> 00:12:57 want the people admitted to be the right people.
00:12:57 --> 00:13:00 Either way, you want the adjudication to track
00:13:00 --> 00:13:02 the law. That's the thing the data says isn't
00:13:02 --> 00:13:05 happening reliably. All right. So let's come
00:13:05 --> 00:13:08 back to Elena. She was picked up. At the border,
00:13:08 --> 00:13:10 she was placed in expedited removal after she
00:13:10 --> 00:13:12 passed her credible fear interview, and she was
00:13:12 --> 00:13:14 transferred to this detention center in rural
00:13:14 --> 00:13:17 Louisiana. Her eight months in detention run
00:13:17 --> 00:13:20 inside that facility, which means she is definitely
00:13:20 --> 00:13:22 not preparing her case from her apartment. And
00:13:22 --> 00:13:25 SSA disability claimants aren't detained while
00:13:25 --> 00:13:27 their cases are pending. Right. They're not detained,
00:13:27 --> 00:13:30 period. Immigration respondents often are. And
00:13:30 --> 00:13:32 that's a feature of the system here that has
00:13:32 --> 00:13:34 no analog anywhere else in administrative adjudication.
00:13:35 --> 00:13:37 How long are they? potentially incarcerated for?
00:13:37 --> 00:13:40 For asylum cases, it could be months, if not
00:13:40 --> 00:13:43 a year or more. Sometimes they're going to be
00:13:43 --> 00:13:45 in multiple different facilities. They might
00:13:45 --> 00:13:48 be picked up in one state, transferred to a facility
00:13:48 --> 00:13:51 in another, occasionally to a third. This was
00:13:51 --> 00:13:54 true before Trump started doing funny stuff with
00:13:54 --> 00:13:56 immigration too. This has been like the way the
00:13:56 --> 00:13:58 system works. They might have family in Houston,
00:13:58 --> 00:14:01 a lawyer in New Orleans, and the detainee, best
00:14:01 --> 00:14:03 case scenario if they're lawyers in New Orleans
00:14:03 --> 00:14:06 is in Jenna, Louisiana. None of that's unusual.
00:14:06 --> 00:14:09 And before the merits hearing, there's a separate
00:14:09 --> 00:14:11 proceeding about whether they can stay there.
00:14:12 --> 00:14:15 Right. So this is the bond hearing, which can
00:14:15 --> 00:14:17 have a huge effect on how the merits hearing
00:14:17 --> 00:14:19 will go, but doesn't get a ton of attention.
00:14:20 --> 00:14:22 So Elena's bond hearing would have happened by
00:14:22 --> 00:14:24 video, like the third week she's in custody.
00:14:25 --> 00:14:28 The IJ is in an office in Texas. The DHS attorney
00:14:28 --> 00:14:30 is on another video feed. And she's in a small
00:14:30 --> 00:14:32 room in the facility with a chair bolted to the
00:14:32 --> 00:14:35 floor. She has no lawyer at the bond hearing.
00:14:35 --> 00:14:37 She probably hasn't been there long enough to
00:14:37 --> 00:14:39 get one. And the whole proceeding can take like
00:14:39 --> 00:14:43 10 minutes. So 10 minutes to decide whether she
00:14:43 --> 00:14:46 prepares the merits case from the inside or the
00:14:46 --> 00:14:49 outside. Right. And this itself is an IJ proceeding.
00:14:49 --> 00:14:52 So we're going to have the same judge pool, the
00:14:52 --> 00:14:54 same variation and the same constraints. What
00:14:54 --> 00:14:56 the judge is deciding isn't the asylum claim.
00:14:56 --> 00:14:58 It's whether the respondent is a flight risk
00:14:58 --> 00:15:01 or a danger and what bond amount, if any, would
00:15:01 --> 00:15:04 secure release. So the factors are things like
00:15:04 --> 00:15:07 community ties in the U .S., criminal history,
00:15:07 --> 00:15:09 prior immigration violations, sponsors who can
00:15:09 --> 00:15:12 house her. Elena here has been here for three
00:15:12 --> 00:15:14 weeks and she might have a cousin in Houston
00:15:14 --> 00:15:17 that she's spoken to twice. At this point, she
00:15:17 --> 00:15:19 potentially doesn't have any documents to put
00:15:19 --> 00:15:21 in front of the judge proving that the cousin
00:15:21 --> 00:15:24 exists. So a respondent who wins bond prepares
00:15:24 --> 00:15:27 for the merits hearing from the outside. A respondent
00:15:27 --> 00:15:29 who loses bond or can't post it. They're going
00:15:29 --> 00:15:33 to be preparing from inside. These two are wildly
00:15:33 --> 00:15:35 different cases by the time they get to the merits
00:15:35 --> 00:15:37 hearing months later. The respondent on the outside
00:15:37 --> 00:15:39 can meet with the lawyer in the lawyer's office.
00:15:39 --> 00:15:41 They can gather documents with family. They can
00:15:41 --> 00:15:45 contact witnesses overseas through. like free
00:15:45 --> 00:15:48 methods like video chat. They can sit through
00:15:48 --> 00:15:51 preparation sessions while somebody who's doing
00:15:51 --> 00:15:54 it on the inside is probably in a rural location
00:15:54 --> 00:15:58 with a few sporadic legal visits, trying to mail
00:15:58 --> 00:16:00 documents and communication through monitored
00:16:00 --> 00:16:03 phone calls. Same statute, same asylum framework,
00:16:04 --> 00:16:05 but a completely different ability to present
00:16:05 --> 00:16:09 it. And there's an empirical handle on this as
00:16:09 --> 00:16:12 well. A significant one. Detained respondents
00:16:12 --> 00:16:15 are represented at a rate well below half of
00:16:15 --> 00:16:18 non -detained respondents. And among the detained
00:16:18 --> 00:16:20 respondents, the gap between represented and
00:16:20 --> 00:16:22 unrepresented is wider than any other population
00:16:22 --> 00:16:25 that people have looked at by an order of magnitude
00:16:25 --> 00:16:29 in some cases. So detention compounds every variable.
00:16:29 --> 00:16:32 You're less likely to have representation. You're
00:16:32 --> 00:16:34 less likely to be able to develop good evidence.
00:16:34 --> 00:16:37 And on this rocket docket system, you've got
00:16:37 --> 00:16:40 less time to develop it too. When the merit hearing
00:16:40 --> 00:16:42 happens, it's based on whatever you've managed
00:16:42 --> 00:16:46 to assemble by that time. OK, take Elena. Eight
00:16:46 --> 00:16:48 months on the rocket docket is brutal, but maybe
00:16:48 --> 00:16:51 workable from outside. But eight months from
00:16:51 --> 00:16:54 within side of Louisiana facility. Right. That's
00:16:54 --> 00:16:57 going to be something else entirely. And eight
00:16:57 --> 00:17:00 months passes the same way either way. And a
00:17:00 --> 00:17:02 judge isn't going to grant a continuance because
00:17:02 --> 00:17:05 a respondent is detained. That's not a basis
00:17:05 --> 00:17:07 for one. A detained Elena's clock is the same
00:17:07 --> 00:17:10 as a non -detained Elena's clock. But what she
00:17:10 --> 00:17:12 can do in those eight months, meet with a lawyer
00:17:12 --> 00:17:14 who can travel to her, get her family to ship
00:17:14 --> 00:17:17 medical records from Honduras, find an expert
00:17:17 --> 00:17:19 on country conditions. This can potentially collapse.
00:17:19 --> 00:17:22 The rocket docket plus detention is the worst
00:17:22 --> 00:17:25 combination the system produces. Fast hearings
00:17:25 --> 00:17:28 based on thin records and the thinness isn't
00:17:28 --> 00:17:30 necessarily because the person didn't try. And
00:17:30 --> 00:17:33 the kind of evidence asylum requires. What's
00:17:33 --> 00:17:35 happening in the home country right now is the
00:17:35 --> 00:17:37 kind of evidence that's hardest to gather from
00:17:37 --> 00:17:40 inside a detention facility. Right. So the State
00:17:40 --> 00:17:42 Department has country reports that are public.
00:17:42 --> 00:17:45 Her lawyer can pull those. But the case specific
00:17:45 --> 00:17:47 evidence, the affidavits from people who witnessed
00:17:47 --> 00:17:50 the persecution, documentation of the threats
00:17:50 --> 00:17:52 that might have targeted her family, expert testimony
00:17:52 --> 00:17:54 about whether her social group theory matches
00:17:54 --> 00:17:57 actual on the ground conditions. That's evidence
00:17:57 --> 00:17:59 that can depend on somebody outside the facility
00:17:59 --> 00:18:02 doing the work. If she has a lawyer, maybe there's
00:18:02 --> 00:18:04 someone who could do that. If she's pro se, the
00:18:04 --> 00:18:06 evidence often doesn't make it into the record
00:18:06 --> 00:18:09 at all. And then the judge, who is required to
00:18:09 --> 00:18:11 consider current country conditions, decides
00:18:11 --> 00:18:13 on a record without the current country conditions
00:18:13 --> 00:18:16 that would have supported her claim. OK, so the
00:18:16 --> 00:18:18 legal standard says current conditions control.
00:18:19 --> 00:18:21 The detention reality says the respondent may
00:18:21 --> 00:18:23 not be able to put those conditions in front
00:18:23 --> 00:18:26 of a judge. Right. The judge is just going to
00:18:26 --> 00:18:28 be deciding based on the record the parties submit.
00:18:28 --> 00:18:30 Detention does not just change how the case feels,
00:18:31 --> 00:18:33 it changes what evidence exists in the case.
00:18:33 --> 00:18:36 So two respondents with identical claims, if
00:18:36 --> 00:18:38 one's detained and one's not, can arrive at the
00:18:38 --> 00:18:40 merits hearing with materially different records.
00:18:40 --> 00:18:43 That's structural variation, that's not individual
00:18:43 --> 00:18:46 failure. Okay, let's put the IJ on the other
00:18:46 --> 00:18:49 side of that. The judge in that courtroom is
00:18:49 --> 00:18:51 looking at a detained unrepresented respondent
00:18:51 --> 00:18:54 making a record on the fly through an interpreter
00:18:54 --> 00:18:57 against a DHS attorney building a credibility
00:18:57 --> 00:19:00 case. The judge has 3 other cases waiting.
00:19:01 --> 00:19:03 What does that hearing actually look like from
00:19:03 --> 00:19:06 the bench? Some of the variation we can see in
00:19:06 --> 00:19:09 judge claims is because some IJs will do some
00:19:09 --> 00:19:11 factual development on their own. They might
00:19:11 --> 00:19:13 ask the kinds of questions that a lawyer for
00:19:13 --> 00:19:16 the immigrant would have asked. They might leave
00:19:16 --> 00:19:18 the record open for additional submissions or
00:19:18 --> 00:19:20 push the DHS attorney on whether something is
00:19:20 --> 00:19:23 actually in dispute. But other IJs treat the
00:19:23 --> 00:19:27 adversarial system as though it is strictly binding.
00:19:27 --> 00:19:29 If the respondent doesn't raise it, it isn't
00:19:29 --> 00:19:32 raised. If the corroborating evidence isn't in
00:19:32 --> 00:19:34 the record, it isn't in the record. Both of these
00:19:34 --> 00:19:37 theories are defensible, but they produce different
00:19:37 --> 00:19:41 outcomes. So, again, that helps explain some
00:19:41 --> 00:19:43 of the variation in judges, although not all
00:19:43 --> 00:19:45 of it. So go back to Elena in the visitation
00:19:45 --> 00:19:49 room. 90 minutes, a lawyer who drove three hours,
00:19:49 --> 00:19:52 evidence is in Honduras. That's the eight -month
00:19:52 --> 00:19:56 version of the case. Right. If she's prosaic,
00:19:56 --> 00:19:58 she's not going to be in a visitation room. She'll
00:19:58 --> 00:20:00 be trying to work on a tablet in a common area
00:20:00 --> 00:20:03 or a phone in a booth with a list of legal aid
00:20:03 --> 00:20:05 organizations she can call and voicemail she
00:20:05 --> 00:20:08 can leave that may or may not be returned. And
00:20:08 --> 00:20:10 the docket clock is running. So the structure
00:20:10 --> 00:20:13 we've been describing, how did this become the
00:20:13 --> 00:20:17 system? Well, incrementally. Immigration adjudication
00:20:17 --> 00:20:20 has never been housed in an independent tribunal.
00:20:20 --> 00:20:22 Since the Executive Office for Immigration Review
00:20:22 --> 00:20:25 was created in 1983, immigration courts had been
00:20:25 --> 00:20:28 part of the Department of Justice. The AG has
00:20:28 --> 00:20:30 always had certification authority. But what's
00:20:30 --> 00:20:32 changed over time is how aggressively these tools
00:20:32 --> 00:20:35 are being used and how much political supervision
00:20:35 --> 00:20:37 is brought to bear on case outcomes. And there's
00:20:37 --> 00:20:40 a longstanding proposal to then change that structure.
00:20:40 --> 00:20:42 Right. So people have tried to push for an independent
00:20:42 --> 00:20:45 court with independent judges who would have
00:20:45 --> 00:20:48 tenure protections, or at least some protections
00:20:48 --> 00:20:51 like magistrate judges do, who would have appealed
00:20:51 --> 00:20:54 to a similarly independent appellate body and
00:20:54 --> 00:20:57 further review by Article III courts. And this
00:20:57 --> 00:20:59 has been endorsed by the American Bar Association.
00:20:59 --> 00:21:01 The Federal Bar Association's Immigration Law
00:21:01 --> 00:21:04 Section has pushed it. There have been various
00:21:04 --> 00:21:06 bipartisan groups working on it, but no bill
00:21:06 --> 00:21:10 has ever passed. Why not? Well, Congress is bad
00:21:10 --> 00:21:14 at... acting on almost anything, but immigration
00:21:14 --> 00:21:16 is one of the worst areas. The last major immigration
00:21:16 --> 00:21:20 legislation was passed in 1996. So we've had
00:21:20 --> 00:21:22 30 years. Everyone who studies the system agrees
00:21:22 --> 00:21:25 the structure is the problem, but the structure
00:21:25 --> 00:21:28 stayed the same. So the system we've been describing
00:21:28 --> 00:21:30 is likely the system that will exist for the
00:21:30 --> 00:21:33 next 10 years. Right. Which means we'll continue
00:21:33 --> 00:21:34 to see the patterns we've been talking about
00:21:34 --> 00:21:37 on some of the highest stakes adjudication systems
00:21:37 --> 00:21:39 in the federal government. for as long as the
00:21:39 --> 00:21:41 political economy of structural change makes
00:21:41 --> 00:21:45 it unfeasible. What about Rosa and Eleanor? Where
00:21:45 --> 00:21:49 are we leaving them? All right. So Rosa is at
00:21:49 --> 00:21:52 home in 2026. She's potentially working with
00:21:52 --> 00:21:56 a permit. She has a 2028 merits hearing on the
00:21:56 --> 00:21:58 docket. At that point, she'll be doing it based
00:21:58 --> 00:22:02 on six -year -old evidence. The rules could have
00:22:02 --> 00:22:05 changed to something that's less favorable. SSFM,
00:22:05 --> 00:22:07 that's what we were talking about with her. That's
00:22:07 --> 00:22:09 the negative. That's the result that's going
00:22:09 --> 00:22:11 to hurt her. That's probably still going to be
00:22:11 --> 00:22:15 the law in 2028. But if we could contrast that
00:22:15 --> 00:22:19 to Elena, if she'd really crossed in 2022, she
00:22:19 --> 00:22:22 would have had her case decided in 2022 or early
00:22:22 --> 00:22:25 2023. So there's a chance she would have been
00:22:25 --> 00:22:28 allowed to stay. She had a lawyer, so that would
00:22:28 --> 00:22:30 have helped. But given how quickly things were
00:22:30 --> 00:22:33 moving and the constraints she was facing, she
00:22:33 --> 00:22:35 probably would have been sent back. So on paper,
00:22:35 --> 00:22:38 this is a system designed to produce fair adjudication.
00:22:38 --> 00:22:41 Due process, appellate review, neutral decision
00:22:41 --> 00:22:43 makers. The paper version does not match the
00:22:43 --> 00:22:45 operating system. In immigration, the variation
00:22:45 --> 00:22:48 is wider. The independence is thinner. The stakes
00:22:48 --> 00:22:50 are higher and the pressure on the adjudicator
00:22:50 --> 00:22:52 is more direct. And the people caught in that
00:22:52 --> 00:22:55 have the least ability to affect it. They may
00:22:55 --> 00:22:57 not speak English. They may be detained. They
00:22:57 --> 00:22:59 may not have a lawyer. Their case may turn on
00:22:59 --> 00:23:02 a doctrine that changed after they all filed.
00:23:02 --> 00:23:05 And before a judge whose grant rate looks nothing
00:23:05 --> 00:23:07 like a judge down the hall. Right. The same pressures
00:23:07 --> 00:23:10 we've been talking about for a while at this
00:23:10 --> 00:23:12 point. And the question we keep arriving at is
00:23:12 --> 00:23:14 the same. The agency is doing what it's doing.
00:23:15 --> 00:23:18 The doctrine has narrowed. The variation persists.
00:23:18 --> 00:23:20 What can anyone do about it from the outside?
00:23:21 --> 00:23:23 Yeah, this is where the question starts to shift.
00:23:23 --> 00:23:25 So once a system is producing outcomes this uneven,
00:23:26 --> 00:23:29 under pressure this direct, the next issue isn't
00:23:29 --> 00:23:31 what happens inside the agency, it's what courts
00:23:31 --> 00:23:34 do from the outside. And I'm willing to bet that's
00:23:34 --> 00:23:37 less than people think. Excellent guess. So courts
00:23:37 --> 00:23:40 review based on the record the agency made and
00:23:40 --> 00:23:42 under standards that the agency generally benefits
00:23:42 --> 00:23:45 from. They don't reweigh credibility. They don't
00:23:45 --> 00:23:47 get a second look at country condition evidence
00:23:47 --> 00:23:49 that the respondent didn't put in front of the
00:23:49 --> 00:23:50 IJ because they were detained and couldn't get
00:23:50 --> 00:23:53 to it. By the time a case gets to the circuit
00:23:53 --> 00:23:56 court, the record is what it is. But judicial
00:23:56 --> 00:23:59 review is real and it matters. But it's also
00:23:59 --> 00:24:01 not the rescue mechanism people sometimes imagine.
00:24:01 --> 00:24:04 Which is where we're headed next season. Yes.
00:24:04 --> 00:24:07 So next season is judicial review. What happens
00:24:07 --> 00:24:09 when this stuff finally goes to court? We'll
00:24:09 --> 00:24:11 start with the basics on justiciability. That
00:24:11 --> 00:24:14 really matters in admin cases. Most of the justiciability
00:24:14 --> 00:24:17 cases are admin cases. Before we get to the standards
00:24:17 --> 00:24:20 of review, and we'll be starting that mid -July.
00:24:20 --> 00:24:24 But before that, we will do an episode to officially
00:24:24 --> 00:24:26 acknowledge the death of Humphrey's executor
00:24:26 --> 00:24:29 once it's announced. And that should come down.
00:24:31 --> 00:24:35 Sometime in June. So that does it for today's
00:24:35 --> 00:24:37 episode on administrative remedies. Thank you
00:24:37 --> 00:24:40 for joining us today. Please, if you enjoy this
00:24:40 --> 00:24:43 podcast, enjoy this episode, give us a like on
00:24:43 --> 00:24:46 Spotify, iTunes, or whatever platform you're
00:24:46 --> 00:24:49 listening on. And be sure to tune in next time
00:24:49 --> 00:24:51 where we'll continue to dive into the contours
00:24:51 --> 00:24:53 of administrative law. Because remember, you
00:24:53 --> 00:24:54 can't fix what you don't understand.