Albany Law Review






In this article, we argue that there is a form of double punishment unique to the immigration court system that attorneys and their noncitizen clients must navigate throughout changing political contexts. The first form of punishment is the court process during removal proceedings, and the second form of punishment is removal from the United States. Our interviews with removal defense attorneys in the U.S. Upper Midwest illustrate how these punishments intersect with one another and push attorneys to adopt strategies that may not lead to winning a case, but intend to protect their clients by losing as slowly as possible. These strategies reaffirm how the severity of deportation can be so harsh that non-citizens are willing to risk more exacerbated forms of punishment via extended contact with the court process to avoid removal from the United States. Focusing on the process-as-punishment, we explore what limitations there may be to past understandings of how legal stakeholders—i.e., defense attorneys, judges, and prosecutors—mete out and negotiate “just” punishment in U.S. courts.


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