Gatekeeping As a Facilitator of Institutional Betrayal in United States Immigration Courts

Background/purpose: In the U.S., migrants depend on the Executive Office of Immigration Review (EOIR) to uphold their right to a fair trial in immigration court. Insofar as EOIR fails to uphold migrants’ rights, institutional betrayal is likely. Smith and Freyd define institutional betrayal as institutional actions and inactions that harm those who depend on the institution for protection or survival. Within this framework, betrayal may be facilitated by normalized gatekeeping practices that deny protections to individuals deemed undeserving by institutional powerholders. In immigration court, such powerholders include migrants’ lawyers, EOIR judges, and Department of Homeland Security (DHS) attorneys. Social work and institutional betrayal research has largely ignored the institution of immigration court. Guided by institutional betrayal, this qualitative case study aims to explore the gatekeeping practices that define migrants as deserving and undeserving in immigration court.

Methods: Twenty-eight semi-structured interviews were conducted over Zoom with immigration lawyers representing adult migrants facing removal. Twenty-two participants primarily practiced in the Midwest, and six practiced in the West. Eighteen respondents worked in private firms and ten worked at nonprofits. On average, participants had 11.3 years-experience. Purposive sampling and email recruitment were used. Each one-hour interview explored participants’ decision-making regarding taking on clients, interactions with EOIR judges and DHS attorneys, and perceptions of EOIR judges and DHS priorities in-and-outside of the courtroom. The authors analyzed interview transcriptions using concept coding with Dedoose software, and they held regular meetings to evaluate inter-coder agreement and refine overarching codes and subcodes. A grant from The Center of Institutional Courage funded the study.

Results: Participants indicated that EOIR judges and DHS attorneys act as gatekeepers to relief from removal in court. Participants often discussed judges’ role in credibility determinations which can preclude migrants’ access to relief from removal, regardless of their legal eligibility. Respondents asserted judges’ perceptions of legitimate evidence relied on racialized and nativist assumptions. A respondent reported hearing a judge state “no claim from Africa is a real claim. They're all liars”. The burden of proof in immigration court intensified DHS attorneys’ gatekeeping authority, who often used aggressive questioning strategies to discredit migrants. Immigration lawyers engaged in gatekeeping when deciding whether to take on a case. Frequently, these decisions reinforced racialized and nativist assumptions by tying migrants’ status as deservingness for relief to their Americanization and acculturation. Further, only one respondent reported that all migrants facing removal deserve representation in court regardless of their criminal conviction history.

Conclusions/Implications: Immigration court practices may facilitate betrayal, as DHS attorneys and judges act as gatekeepers to migrants’ relief from removal. Racialized and nativist definitions of deservingness ultimately normalize and justify migrants’ removal and disparate access to legal representation. These findings challenge the assumption that immigration courts act as neutral legal arbitrators and demonstrate a need for systemic changes that advance justice for migrants within immigration court. Policy changes are needed to expand migrants’ access to legal representation and develop avenues for accountability and transparency to protect migrants’ right to a fair trial in immigration court.