Levesque, C., Horner, K., & Chan, L. (2022). Process as Suffering: How US Immigration Court Process and Culture Prevent Substantive Justice. Alb. L. Rev., 86, 471.
Process as Suffering: How U.S. Immigration Court Process and Culture Prevent Substantive Justice argues that U.S. immigration courts impose a unique form of “double punishment” on noncitizens: first through the prolonged, coercive court process itself, and second through the ultimate sanction of deportation. Drawing on interviews with 35 removal defense attorneys, the authors show that immigration court procedures—characterized by a presumption of removability, limited access to counsel, political volatility, and binary outcomes—produce suffering independent of case outcomes and systematically undermine substantive justice. Because deportation is so severe and discretion so constrained, attorneys often adopt time-based strategies such as delaying proceedings or “losing slowly” to protect clients from immediate removal, even when legal victory is unlikely. Building on and revising Malcolm Feeley’s insight that “the process is the punishment,” the article demonstrates that in immigration law the process functions not as a negotiable path toward just outcomes, but as a punitive mechanism that entrenches inequality, limits meaningful advocacy, and reinforces the legitimacy of an unjust system