The Slow Violence of Immigration Court: Procedural Justice on Trial

The US immigration court system has come under increasing scrutiny in the last decade, a consequence of restrictionist presidential orders, growing staffing shortages that have created lengthy backlogs, and media coverage of the plight of immigrants caught up in this system. Criminal justice scholar Maya Pagni Barak gives voice to immigrants and their attorneys who struggle to find justice in this process, interviewing twenty Central American migrants and seventeen immigration lawyers. Pagni Barak's important study of the current state of the immigration deportation process explores the ways in which Guatemalan, Honduran, and Salvadoran immigrants experience this system. Her analysis reveals distinct perspectives of migrants and lawyers, ultimately identifying the ways in which this broken system might be fixed.Drawing upon recent studies of “procedural justice,” Pagni Barak explains, “Traditional conceptions of procedural justice that link process fairness to outcome satisfaction, outcome satisfaction to perceptions of state legitimacy, and state legitimacy to compliance simply do not apply to this context” (p. 106). She argues that Central American immigrants perceive the deportation process as “fair,” but most were not satisfied with the outcome of their case and refused to comply with orders. The author's interview subjects evaluated court officials based on their behavior, the interactions between immigrants and officials, and the opportunity provided for immigrants to participate in proceedings. Based on these criteria, they considered the judges, ICE attorneys, and translators who held their fate in their hands to often be just, kind, and reasonable people simply doing their jobs. Pagni Barak attributes this perspective to Central Americans’ points of reference: the experiences of immigrants from El Salvador, Guatemala, and Honduras with gangs, corruption, and even civil war in their home countries stood in stark contrast with their perception of the United States as a nation of law and order in which the government had the legitimate authority to enforce the laws of the land. Indeed, their decision to migrate to the United States was at least in part informed by the belief that the US government was “tough on crime,” thereby assuring their safety (p. 115). The author attributes their knowledge of the US immigration court system to the media and the experiences of family and friends, often sources in misinformation and misunderstandings about that system. Those misunderstandings often plunged them deeper into trouble, as missed hearings resulted in deportation orders from which relief was nearly impossible to receive.And yet, these same immigrants refused to comply with immigration laws and deportation orders. The author's study offers an important corrective to the emphasis past scholars have placed on procedural justice. Pagni Barak instead stresses that immigrants’ perception of “distributive justice,” or “the fairness of the allocation of outcomes across individuals or encounters,” should receive more attention (pp. 98–99). Whether immigrants believed that their own crimes were minor compared to others or that their cases warranted special consideration or that the legal decision against them was simply not moral, particularly in cases of family separation, they concluded that the outcomes were wrong.In contrast, immigration attorneys identified the myriad flaws in the system. Immigrants’ lack of knowledge about the legal system in which they were ensnared meant that they did not recognize the negative impact of the detention system on legal representation, the shortcomings of translation services, the overdependence on flawed videoconference hearings, and their lack of rights in civil court. Their assessments point readers to specific elements of immigration courts requiring procedural reforms, but that alone will not rectify the problems with the system. For distributive justice reforms, Pagni Barak draws upon her interviews with immigrants facing deportation, who argued that they needed more pathways to relief and legal status.The book closes with a compelling invocation of its title. The introduction of the concept of “slow violence” sends the reader back through the text, realizing how the author's interviews have revealed the full terror in which undocumented immigrants live. The system continues to wreak a form of “slow violence” upon immigrants, even with modest changes of policy perceived as favorable to immigrants. The uncertainty of their status leaves them in legal limbo, unable to achieve stability for themselves and their families in the present or plan for the future as they live in constant fear of deportation and family separation. In addition to the shifting political winds and the elusiveness of immigration reform, the seemingly endless series of postponements and cancellations of hearings lays bare the broken nature of the system.Pagni Barak's work is an important contribution to our understanding of these issues. Immigration scholars across disciplines should draw inspiration from her work and continue her efforts to understand how other immigrant groups, past and present, experience the machinery of immigration policy enforcement. As her book makes clear, it is those perspectives that will expose both the cracks in the system and the means by which they may be fixed.