The Accountability Deficit: When Immigration Detention Obstructs One’s Day in Criminal Court

“The right to have your day in court is foundational to the U.S. criminal legal system. Yet, many noncitizens in immigration detention facing criminal charges are denied this right when ICE routinely fails to produce immigration detainees to criminal court to resolve charges. In immigration proceedings, immigration judges regularly use those unresolved charges to detain and deport. This Article is the first to examine this obstruction of court access and its implications a particularly imperative study as recent executive and congressional proclamations foretell a gross expansion of the number of individuals in immigration detention with pending criminal charges.

Immigration obstruction of court access occurs because of an accountability deficit: Neither the immigration jailor nor criminal prosecutor suffers consequences for obstructing court access, and thus the accountability deficit falls on the noncitizen defendant. This Article posits the following three implications. First, noncitizen defendants suffer constitutional criminal procedure violations when obstructed from accessing criminal proceedings. Second, noncitizen defendants are harmed in immigration proceedings because the unresolved criminal charge is used to detain and deport them, perpetuating a cycle of obstruction. Finally, noncitizen defendants’ rights are in even greater jeopardy because the jailor and prosecutor are the same entity in the immigration apparatus and are further commingled with the judge. This Article proposes to close the deficit by assigning accountability to criminal and immigration enforcement actors through a two-pronged remedy: dismissal of charges on the criminal side and prohibiting use of the pending charge to detain or deport on the immigration side.”