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Won Kidane

Abstract

A thoughtful student once asked an immigration judge during an informal exchange: “If the respondent in your court who has just been found deportable appears to qualify for cancellation of removal but has failed to fill out the form properly, what would you do?” The judge responded matter-of-factly, “I am not his attorney. If the application is not completed properly, I don’t have an application to consider.” It goes without saying that the judge would then order the respondent deported for not submitting a properly completed application for relief. The judge’s response might have seemed harsh or even insensitive to the student, but wasn’t that the right answer under the existing adversarial system? If so, what could be done to avoid such kinds of harsh consequences? This article considers these basic questions through a comparative lens....To help answer the question why different systems adopt different procedural methods for the resolution of legal controversies and why we have the system that we do, the second section traces the origins and development of the common law and civil law legal traditions and outlines the differences in their techniques of adjudication. It also provides a comparative analysis of the advantages and disadvantages of each system, focusing on the roles and responsibilities of judges and party litigants in civil, criminal, and administrative contexts...The third section discusses the default importation of the adversarial system into immigration proceedings and critically examines the effects of the adversarial system and outlines its shortcomings. The fourth section provides a brief but detailed summary of the existing diagnostics and reform proposals. Bringing the discussions in the previous four sections to bear, the fifth section outlines the advantages that the inquisitorial system may have in the deportation context and shows how the replacement of the adversarial system with the inquisitorial system could improve the existing system of adjudication by significantly increasing efficiency, reducing cost, and improving accuracy and acceptability. The sixth section offers a summary of conclusions.

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