Vol. 35 No. 01 (March 2025) pp. 8-10THE SLOW VIOLENCE OF IMMIGRATION COURT: PROCEDURAL JUSTICE ON TRIAL, by Maya P. Barak. New York University Press, 2023. pp. 240. Cloth $89.00. ISBN: 9781479821037. Paper $30.00. ISBN: 9781479821044.
Reviewed by: Luzmarina García. Department of International and Multicultural Education. University of San Francisco. Email: lagarcia@usfca.edu.
The Slow Violence of Immigration Court: Procedural Justice on Trial by Maya Pagni Barak examines the paradoxes that exist in plain view in both the American legal system and society at-large. This work lays out, at last, a comprehensive timeline in the immigration court process, laying out the steppingstones and the issues with each stage, noting institutional procedures and objectives, and examining enlightening interviews with immigration attorneys and moving narratives of immigrants that are/have gone through the courts.
The author, an Associate Professor of Criminal Justice Studies at the University of Michigan–Dearborn, challenges the prevailing belief in the effectiveness of procedural justice within an unjust immigration system. Barak argues that conventional approaches, such as improving due process and bureaucratic changes, fail to address systemic issues and do little to increase immigrant compliance with deportation orders. Barak conducted formal, in-depth interviews with 36 individuals between 2014 and 2016, comprised of Guatemalan, Honduran, and Salvadoran immigrants in deportation proceedings, their family members, and licensed immigration attorneys. The study also involved visits to two East Coast immigration courts, where Barak observed numerous deportation hearings. The author advocates for a shift away from strategies emphasizing the appearance of justice, urging a focus on genuine justice to promote collective well-being and human dignity in addressing the flaws of the immigration court and system.
In Barak’s work, I identified paradoxes that are vital for understanding how immigration courts exercise a “slow violence” (Pagni Barak 2023, p. 152). First, immigrants express positive opinions of the court even as they are going through its procedures, while attorneys who work within the courts express negative opinions of the process, resources, and judges’ behavior. Second, the ideal of due process versus the reality that is exercised in immigration courts is a stark contrast. Issues such as respondent language proficiency, translation quality, and video conferencing issues, which are only a few of the problems in the process, do not allow for a fair day in court. Next, there is the conflicting legal consciousness that is developed in an environment of both accurate legal information and fallacies. Legal consciousness refers to the “ways people understand and use the law,” including “the way people conceive of the ‘natural’ and normal way of doing things, their habitual patterns of talk and action, and their commonsense understanding of the world” (Merry 1990, p. 5). Barak describes how immigrants develop legal consciousness through dual socialization—in their countries of origin and in the U.S. Immigrants, therefore, bring formal knowledge of the legal systems in their origin countries but learn about American law through family stories, friends, and media. Barak also presents the paradox of immigrants’ admiration of the rule of law versus their proclivity for following the rules. Essentially, the promise of rule of law is a motivating factor for many immigrants to come to the U.S., but this admiration turns to cynicism if there is a deportation ruling in their own case. Thus, immigration law is seen as inadequate for immigrant needs in the minds of many interviewees, which causes them to justify non-compliance with adverse rulings.
A larger legal critique that receives valuable attention in the book is whether these immigration court cases are criminal or civil law proceedings. The U.S. Supreme Court has asserted that immigration matters, such as deportation and detention, are civil, not criminal, in nature (Padilla v. Kentucky 2010; Fong Yue Ting v. United States, 1893). Consequently, immigrants in these proceedings lack several due process protections provided to criminal defendants. Notably, they do not have a right to indigent defense, and evidence obtained without a proper warrant or in violation of Miranda rights can be admitted, except for extreme Fourth Amendment violations. While immigrants can present evidence, cross-examine witnesses, and appeal bond and deportation decisions, their rights are limited. They are granted some Fifth Amendment protections for a "fundamentally fair" deportation hearing, but these rights can be further restricted under certain circumstances. However, with the detention of immigrants in prison facilities, and due to the low rate of appeals and high stakes in the case of deportation back to a home state where a credible fear may exist, Barak notes that immigration courts straddle the fence between civil and criminal law.
Finally, the key paradox of the book is procedural versus distributive justice, with a focus on how immigrants are supportive of the process but not with the court outcomes. “Procedural justice” pertains to the perceived fairness of a process, focusing on how individuals perceive their treatment by those in positions of power and control (p. 99). This assessment of procedural justice is distinct from satisfaction with outcomes and the distribution of resolutions, known as “distributive justice” (p. 98). The migration experience may lead immigrants to have positive views of legal authorities and systems in receiving countries, viewing them as improvements over their countries of origin. In this conflict between procedural versus distributive justice lies the book’s greatest strength. Barak notes that her findings run counter to a large body of work that demonstrates that procedural justice outweighs distributive justice in outcome satisfaction equations (p. 99). Although her findings are not alone (Tyler 1988), the testimonies from respondents and lawyers depict a different reality from what we think a trial should be, perhaps highlighting the intentions in the design of immigration courts. More perplexing still is the counterintuitive support of immigrants for a process that experts deride as complicated to a point of illegitimacy. Beyond the comprehensive picture of the system that the book illustrates, I am most grateful for the many powerful stories showing the variation in immigrants’ experiences and their resilience throughout these experiences.
Immigration courts operate within the broader political context of the bureaucracy as part of the Department of Justice. One underexplored area of the book is the tension between political influence and judicial independence and how it is unique to immigration courts. Shifting political landscapes can potentially compromise the impartiality of the courts in several ways including changing leadership by appointments and curtailing judges’ independence by setting case goals and creating time pressure on decision-making. For example, Barak points out the growing docket of immigration courts and the exponential growth of time-to-trial. However, while national policies create a case influx causing a time crunch, these policies directly affect the conditions for judicial independence. As is, there are glaring inconsistencies in decision-making among different immigration judges and courts in asylum granting rates. This lack of uniformity raises questions about the fairness and predictability of outcomes within the system. Moreover, while asylum is considered a right under international law, ongoing debates and policy changes place restrictions on claiming asylum in the U.S. It is within the purview of presidential administrations to make institutional changes to implement their immigration policy. Shifting political landscapes impact the interpretation and enforcement of immigration laws.
Immigration courts operate within the broader political context of the bureaucracy as part of the Department of Justice. One underexplored area of the book is the tension between political influence and judicial independence and how it is unique to immigration courts. Shifting political landscapes can potentially compromise the impartiality of the courts in several ways including changing leadership by appointments and curtailing judges’ independence by setting case goals and creating time pressure on decision-making. For example, Barak points out the growing docket of immigration courts and the exponential growth of time-to-trial. However, while national policies create a case influx causing a time crunch, these policies directly affect the conditions for judicial independence. As is, there are glaring inconsistencies in decision-making among different immigration judges and courts in asylum granting rates. This lack of uniformity raises questions about the fairness and predictability of outcomes within the system. Moreover, while asylum is considered a right under international law, ongoing debates and policy changes place restrictions on claiming asylum in the U.S. It is within the purview of presidential administrations to make institutional changes to implement their immigration policy. Shifting political landscapes impact the interpretation and enforcement of immigration laws.
Addressing the paradoxes identified in the book requires a nuanced and comprehensive approach to immigration reform that considers the legal, humanitarian, and socio-economic dimensions of the immigration system in the United States. Barak’s investigation into a set of underexamined courts explains a daunting judicial process and its consequences on individual actors while providing motivation and actionable goals to create institutional reform.
CASES:
Fong Yue Ting v. United States, 149 U.S. 698 (1893).
Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
REFERENCES:
Merry, Sally Engle. 1990. Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans. Chicago, IL: University of Chicago Press.
Tyler, Tom R. 1988. “What Is Procedural Justice?: Criteria Used by Citizens to Assess the Fairness of Legal Procedures.” Law & Society Review 22(1): 103–35.
© Copyright 2025 by author, Luzmarina Garcia.
