Detainee Transfers and Immigration Judges: ICE Forum-Shopping Tactics in Removal Proceedings

U.S. immigration policy and ICE tactics have been greatly scrutinized over the past year. While many criticisms focus on border policy and the conditions of detention, scholars have also raised concerns over ICE’s unfettered discretion to transfer detainees to different detention centers. Not only may ICE transfer detainees anywhere in the country, ICE has gradually expanded this practice. Now, on average, every detainee is transferred at least once each year. ICE, however, is not the sole point of criticism for immigration advocates. Recently, Immigration Judges’ decisions have been scrutinized for their lack of consistency. Wide variations in IJ decision making indicates that the judge assigned to a case heavily influences the likelihood of a favorable outcome to ICE. The intersection of these two distinct problems—immigration detainee transfers and inconsistent IJ decisions—effectively allows ICE to forum shop by transferring detainees to detention centers with IJs who are likely to issue rulings favorable to ICE. This amounts to a crisis of justice, as ICE may transform facially neutral proceedings into judicial rubber stamping for the case outcomes ICE desires