SMU Law Review
Abstract
In the modern deportation era, immigration courts saw their ability to grant relief from deportation undergo significant restrictions, constraining individualized discretion in favor of "categorical" denials. Congress dramatically curtailed the discretionary tools available to immigration judges, with the latest being the pair of immigration reforms from 1996, shifting the locus of individualized decision-making away from the courts and toward enforcement officers and prosecutors. Immigration courts lost discretion in being able to decide who could formally be granted status and stay in the United States when facing deportation through various restrictive eligibility requirements written into the law.
This Article argues that in the wake of this curtailment, immigration judges increasingly turned to procedural mechanisms—continuances, administrative closures, and related docket management tools—as surrogate instruments for achieving just outcomes. In doing so, procedural discretion quietly replaced substantive discretion as the primary means by which immigration courts could account for individual circumstances and equitable considerations.
Drawing on due process theory, criminal sentencing scholarship, and procedural justice literature, this Article takes as a starting point Malcolm Feeley’s foundational argument in The Process is the Punishment that the burden of legal proceedings can itself constitute the primary sanction—independent of any formal outcome. In the immigration removal context, this framework operates in a distinctive and often inverted way. The massive and sustained backlog in immigration courts inadvertently created space for procedural discretion to flourish, effectively giving immigration judges their most powerful tool: time. Even as Immigration Judges were unable to provide formal relief, they could nonetheless provide more time in the process and thus more time in the United States for individuals that they perceived deserve remedy from deportation.
The Biden Administration’s "Dedicated Docket"—designed to accelerate adjudication of asylum cases—serves as one example of a natural experiment revealing how compressing procedural time eliminates the de facto relief that docket delays had provided.
The discretion to impose detention, provided another example of how procedural discretion impacted the outcomes provided to individuals. Immigration detention emerged as the critical variable that distorts this framework, converting time in the removal process from a potential benefit into an acute harm and exposing the fundamental limitations of procedural discretion as a substitute for meaningful substantive relief. The Article concludes by examining the Trump Administration’s efforts to curtail procedural discretion and restrict judicial authority over detention decisions—developments that, taken together, suggest the removal system is moving toward one in which neither substantive nor procedural tools remain available to temper its outcomes.
Recommended Citation
R. Linus Chan,
Managing Deportation: How Docket Control Replaced Substantive Relief in Immigration Courts,
79
SMU L. Rev.
161
(2026)
