Geography as Due Process in Immigration Court

Using the procedural due process framework set forth by the Supreme Court in Mathews v. Eldridge, I argue that the current geographic distribution of immigration courts violates respondents’ rights to procedural due process by inhibiting their ability to appear, present evidence, and secure counsel. In so doing, I highlight the detrimental effects that geography has on remote communities, such as their ability to build pipelines towards access to counsel. Finally, I weigh and propose alternative solutions that balance the government’s interests in efficiency with the respondents’ interests in having a meaningful opportunity to avoid the harsh consequences of deportation

The Right to Migrate

Since the late-19th century, the Supreme Court has insisted that the preservation of national sovereignty requires a constitutional chasm between immigration law and ordinary law. If the Court is to bridge that chasm, it must reimagine the long-standing premise of the federal immigration power that the presence of noncitizens in U.S. territory menaces the nation’s sovereignty and security. This Article contributes to that reimagining by chronicling a compelling alternative worldview with a venerable historical pedigree—that of a quintessentially American right to migrate. During the Founding Era, American statesmen described the impoverished subjects of Europe’s monarchies as protagonists in an unfolding world-historical drama of human liberation and enlightenment, shaking off the servitude and privations of the Old World and reinventing themselves as free, equal, and independent republican citizens. Although the scope of that vision originally was limited to Europe, it nevertheless seeded a field of American national identity that eventually would yield a genuinely universal (though ultimately unconsummated) right to migrate to the United States and be incorporated within the American political community. Following the Civil War, leading congressional architects of Reconstruction sought to expand the right to migrate beyond Europe to an emerging global theater of cosmopolitan culture, commerce, and labor. To the liberal internationalists of the postbellum era, migration was not a discrete, constitutionally exceptional subject of federal policy-making; rather, it was integral to the monumental post-Civil War project of renovating and reinvigorating American liberty, equality, and citizenship. Theirs was a worldview in which federal sovereignty and citizenship were paramount, yet the border between citizen and alien was both porous and transitory, and in which immigrants were regarded as “Americans in waiting.” That worldview serves as a forceful rebuttal to the Court’s presumption that preserving national sovereignty and security requires that immigration law occupy a constitutional world apart