Immigration law is tasked with determining who should be removed (deported) from the United States. Theoretically, that adjudication takes place before an immigration judge, who works for the Department of Justice. A lawyer for the Department of Homeland Security represents the government. There is a good chance the foreign national has no attorney, especially if the individual is detained during the removal process. It is hard to be excited about the immigration court adjudication system; it has a lot of problems. The backlog of cases in the immigration courts has pushed over 600,000. Immigration judges and members of the administrative appellate board are not Administrative Law Judges and lack decisional independence. Immigration judges hardly get any training. Federal courts have expressed displeasure with the quality of adjudication, which is especially disconcerting given that Congress has implemented restrictions on judicial review. What would the courts think of what they do not see?

As challenged as this system is, at least it is a system of adjudication. Over the years, the consolidation of functions dilemma has been at least partially addressed, purposefully, by making immigration judges part of the Department of Justice and government “prosecutors” part of the Department of Homeland Security. There also have been some improvements in representation for foreign nationals.

However, the immigration court system of adjudication is actually just a minor player in immigration adjudication. The lion’s share of immigration removal adjudication does not occur in immigration court. It takes place outside of the immigration court system altogether.

I recognized these diversions back in 2009, and others have done wonderful work also studying this phenomenon. Diversions include waivers of rights to a hearing before an immigration judge, prosecution of foreign nationals for immigration crimes in federal court rather than civil violations in immigration court, reinstatement of removal, administrative removal, and expedited removal.

The diversions really have become the main event, and they are poised to further minimize the role of immigration court adjudication if (when?) President Trump further expands expedited removal. As I have said, the failings of the immigration court system are not an excuse for an end run around the system.

What is problematic about these diversions? First, many fail the administrative process design criteria of accuracy, efficiency and acceptability. Second, diversions exacerbate concerns about government power. When the removal decision comes outside of immigration court, any benefit from the design of the immigration court system is lost. In a diversion, the removal decision is consolidated within one agency, as opposed to two. In expedited removal, for example, the decision to remove is made by a front-line officer, and is subject only to supervisory review within the same agency. Diversion-based adjudication like expedited removal also is less transparent and is closed to public observation. Third, these procedural shortcuts are bad news for the state of administrative adjudication generally. Accepting this kind of end run institutionally weakens principles of adjudication. Fourth, diversions stifle efforts to normalize immigration law. We should be moving toward treating immigration law like any other area of law and holding it to core standards. Diversions send a signal that our standards are negotiable in the context of immigration law.

I am not fundamentally opposed to the use of diversions from immigration adjudication. But many diversions are hopelessly flawed, and diversions have become the new norm, rather than an occasional alternative. We need new terminology for what is going on. What do you call an adjudication system that is really all about avoiding adjudication? Should we call these diversions “fake adjudication?”