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Abstract

A removal hearing in immigration court focuses on two predominant issues—whether the noncitizen is deportable and whether the noncitizen should be granted relief from a deportation order. Because it is relatively easy for the government to prove deportability, most removal hearings turn on the noncitizen’s application for relief. Currently, an Immigration and Customs Enforcement (ICE) attorney serves as a relentless adversary throughout the removal process, even though few noncitizens are represented by counsel. Although the entire removal hearing lacks the elements that are essential to a fair adversarial proceeding, the ICE attorney’s participation in initially establishing a noncitizen’s removability is arguably justified by the government’s immigration-enforcement objectives. This justification does not, however, extend to the application-for-relief stage, where the focus is on granting mercy, not on whether immigration laws have been violated. Allowing noncitizens to apply for relief from a deportation order reflects Congress’s acknowledgment that deportation is too harsh a sanction to be imposed in every situation. These twin deficiencies—lack of procedural safeguards and lack of a legitimate governmental interest—combine to produce a relief hearing that violates noncitizens’ procedural due process rights. This Article argues that immigration courts should shift to a nonadversarial model at the relief stage of removal hearings. In a nonadversarial relief stage, the ICE attorney would withdraw and the immigration judge would adopt an inquisitorial role. Such a shift would provide noncitizens with an opportunity to present their applications for relief under procedures that comport with the Due Process Clause, accommodate the government’s immigration enforcement goals, and impose insubstantial administrative costs on the immigration court system.

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