Group #8 Federal Court Procedure
• Putting the “Civil” in Civil Immigration Proceedings
Richard Frankel, Drexel University Thomas R. Kline School of Law
Government lawyers and some judges frequently argue that non-citizens in removal proceedings do not have the same rights as defendants in criminal proceedings. To support this position, a common argument is that removal proceedings are civil matters. Accordingly, a non-citizen who is detained has fewer due process protections than a criminal defendant, and removal proceedings similarly provide fewer due process protections than criminal proceedings.
In many ways, however, immigration proceedings are anything but civil. They suffer from arcane and hyper-technical procedures that impede immigrants from having their claims reviewed on the merits. Notably, the civil justice system was plagued by similar problems back in the early 20th Century. The response was to create the Federal Rules of Civil Procedure, which emphasized a preference both for speedy and efficient proceedings and also for deciding on their merits rather than on procedural traps. The modern rules substantially simplified pleading rules and emphasized flexibility in order to foster the goals of fairness and efficiency.
This article argues that the Federal Rules can offer valuable lessons for reforming immigration proceedings. The article identifies several aspects of the federal rules that should be imported into immigration matters and that will help promote claims being heard on their merits. Given the high stakes in removal proceedings, if society continues to treat immigration proceedings as civil matters, the least it can do is to incorporate aspects of the federal rules that can best promote access to justice for non-citizens.
• “We Are Not Ombudsmen:” Federal Court Review of State Court Procedure and a New Comity Abstention
John Harland Giammatteo, Georgetown University Law Center
In the past several years, federal courts have quietly abstained from hearing systemic challenges to state court proceedings affecting millions of Americans, citing concerns of “comity” and “federalism,” and the relationship between state and federal courts. Abstention has frustrated a broad range of substantive challenges, including litigation regarding eviction proceedings, foster care determinations, bail, COVID-era safety policies, the Americans with Disabilities Act, the Indian Child Welfare Act, and the First Amendment. When abstaining, federal courts largely reject many of the guardrails that the Supreme Court articulated in Younger v. Harris, announcing instead a broad new abstention doctrine that would cleave large parts of federal constitutional and statutory law from the remit of federal courts.
This paper offers a comprehensive description of this new form of comity abstention. At its most basic level, the new comity abstention purports to bar lawsuits seeking equitable relief that would require a federal court to review the “internal workings” of state courts and their procedures. In practice, courts employ it to refrain from hearing cases that may have any effect on state court proceedings. After defining the doctrine and how it has played out in recent cases, I turn to critique. I conclude by suggesting a compromise position: to the extent, federal courts need to consider comity concerns in their analyses, they should do so as part of their remedial calculation — not by declining jurisdiction at the outset of the litigation.