Introduction
Recent executive and legislative proclamations foretell the gross expansion of the U.S. immigration detention system, particularly for individuals with pending criminal proceedings. Days after being sworn into office, President Donald Trump issued quotas to U.S. Immigration and Customs Enforcement (ICE) to increase immigration arrests from a few hundred per day to at least 1,200 to 1,500 per day.
Just a few months later, the Trump Administration increased the quota to 3,000 arrests per day.
As a result, ICE detention facilities are over capacity. Detention centers were reportedly already at 109% capacity within the first few weeks of the Administration,
and the number of immigrants in detention had increased by 20% six months later.
The Trump Administration has long said that its top priority for such detention and deportation is noncitizens with criminal convictions or pending charges.
Moreover, in January 2025 Congress enacted the Laken Riley Act, which requires that certain individuals be detained by ICE with no opportunity for a bond hearing, even if they have only been arrested or charged—and not yet convicted—for a host of crimes, including minor crimes like shoplifting.
A few months later in July 2025, Congress passed the so-called One Big Beautiful Bill Act
—a massive budget reconciliation bill that will “supercharge” the Administration’s anti-immigration agenda, allocating approximately $170 billion to immigration detention and enforcement.
The immigration detention dragnet, then, is set to sweep in many individuals who face pending criminal charges and thus need to have their day in criminal court.
That ICE detains individuals with pending criminal proceedings is not surprising. But what many may be shocked to learn is that, once noncitizen defendants are detained, many are barred from accessing criminal court proceedings.
Indeed, ICE routinely refuses to permit individuals in its custody to attend criminal court hearings, in person or virtually, even when ordered to do so by a state criminal court.
As a result, individuals are obstructed from having their day in criminal court to resolve those charges. Meanwhile, unresolved charges are used against noncitizen defendants in their immigration proceedings to deny release from immigration detention—therefore prolonging detention—or to deny immigration relief, thereby leading to deportation.
This Article is the first to shed light on this little-known and constitutionally problematic immigration detention practice—which this Article calls “obstruction of court access”—and the ways it shapes the crimmigration
paradigm. Consider the case of Ramirez, who arrived in the United States at age fourteen and worked throughout high school to support his family.
Ramirez’s immigration troubles began when, in high school, he was charged with an offense against a minor for sexual involvement with a schoolmate.
Based on this pending charge, ICE detained him and placed him in immigration removal proceedings.
In immigration court, Ramirez sought relief from removal by applying for adjustment of status to become a legal permanent resident, which he became eligible for after his mother became a naturalized U.S. citizen.
Although the immigration judge concluded that Ramirez was statutorily eligible for adjustment of status, the judge denied him relief and ordered him deported based solely on the pending criminal charge.
He was ultimately deported to a country where he feared persecution.
Ramirez’s deportation, based solely on the pending criminal proceedings, is all the more troubling in light of what did—or rather, did not—occur in those criminal proceedings. For nearly four years, Ramirez never had his day in criminal court to refute the allegations levied against him because he was stuck in immigration detention.
ICE failed to produce him despite numerous state court writs of habeas corpus ordering that he be produced to court.
In the end, immigration authorities deported him based solely on a charge that immigration authorities obstructed him from resolving.
More than a year after he was deported, the First Circuit remanded his case to the Board of Immigration Appeals (BIA)—the administrative appellate body that reviews immigration judges’ decisions and the highest administrative body for interpreting and applying immigration laws—to properly analyze the impact of the pending charge on his application for relief.
But still, he remains deported, as ICE has refused to permit his return to the United States.
Ramirez’s story is just one of many. Yet, thus far, immigration obstruction of court access has occurred in the shadows of public
and scholarly attention. Criminal law scholars have examined defendants’ failure to appear in criminal court after being released on bail,
but, as Lindsay Graef and others recently noted, failure to appear because a jailor failed to bring the defendant from jail to court is a type of failure to appear that “has been largely unrecognized in [criminal law] scholarship and policy conversations.”
Moreover, this body of criminal law scholarship does not consider the interaction between the criminal and immigration legal systems when the individual impacted is a noncitizen defendant stuck in immigration detention. Nor has there been much litigation challenging immigration failure to produce.
Indeed, it bears noting that, while anecdotes like Ramirez’s abound, it is difficult to ascertain the precise scope of the problem empirically due to a lack of systematic recordkeeping by state or federal entities.
Yet immigration obstruction of court access is an important subject of study not only because of the unique jeopardy noncitizen defendants face but also because it sheds new light on the interaction between the criminal and immigration legal systems when a noncitizen defendant faces active proceedings in both. This new understanding of crimmigration is all the more imperative as executive and congressional priorities and mandates increasingly bring active criminal and immigration proceedings into conflict.
This Article fills the scholastic and information gap. It examines the systems that permit obstruction of court access in immigration detention and the harms it imposes on noncitizen defendants as a matter of criminal law rights and immigration law rights, and it proposes a two-pronged solution to remedy the harms as an adjudicatory matter. In so doing, this Article contributes to existing criminal law and immigration law scholarship.
Drawing on court rulings, government documents, and client experience, Part I describes immigration obstruction of court access. It examines the immigration priorities and enforcement practices that result in a detention system that detains many noncitizens who have pending criminal proceedings. It then examines the ways ICE affirmatively and effectively obstructs those individuals from having their day in criminal court to answer those charges.
Part II turns to the question of how immigration detention could possibly be permitted to obstruct a noncitizen defendant’s constitutional rights to court access in this way. This Article argues that the answer lays in what Professor David Sklansky has called in other contexts an “accountability deficit.”
When neither the immigration jailor nor the criminal prosecutor face consequences for refusing to produce a noncitizen defendant to criminal court proceedings, obstruction of court access is permitted to occur with effective impunity. The accountability deficit, then, is paid by the noncitizen defendant stuck in immigration detention who suffers harms under both the criminal and immigration legal systems.
The existence of the accountability deficit in immigration obstruction of court access is glaring when compared with the accountability mechanisms that lawmakers have legislated in the criminal custody context.
Indeed, the problem of obstruction of court access is not unique to immigration detention. For much of U.S. history, defendants serving carceral sentences in one jurisdiction while facing prosecution in another jurisdiction have similarly struggled to exercise their rights to face charges against them.
Recognizing this problem, the states and federal government enacted the Interstate Agreement on Detainers,
which requires that charges be dismissed if incarcerated individuals are not brought to court and timely tried.
Lawmakers, in effect, legislated accountability to protect defendants’ rights in criminal custody. Such legislated accountability, however, does not apply when a noncitizen defendant is subject to civil immigration detention.
Having identified the accountability deficit, Part III examines the consequences of that dearth. It posits three interrelated implications that are underexplored in criminal law scholarship and immigration law scholarship and give rise to an accountability imperative.
First, noncitizen defendants stuck in immigration detention suffer criminal law harms of constitutional proportion when they are obstructed from participating in criminal proceedings.
The right to have one’s day in court is a foundational precept of the U.S. criminal justice system, safeguarded by a constellation of rights under the First, Fifth, Sixth, and Fourteenth Amendments.
The Supreme Court has long made explicit that these criminal procedure rights apply to anyone in criminal proceedings, regardless of whether they are a citizen or are detained.
Thus, through a criminal rights lens, the constitutional dilemma that occurs when ICE obstructs a noncitizen defendant from appearing in court is, perhaps, intuitive. In Doe v. Department of Homeland Security, a putative class action on which this author is co-counsel, the district court concluded that ICE’s obstruction of court access policy at the Moshannon Valley Processing Center was likely unconstitutional, emphasizing that even defendants agreed “that a deprivation of access to criminal court proceedings causes a waterfall of further . . . deprivations [that] are illegal under the United States Constitution.”
The court issued a preliminary injunction ordering defendants to “immediately function in compliance with the tenants of the United States Constitution” by granting individuals access to criminal court proceedings virtually.
But outside the context of this one case, which remains ongoing, individuals who are in ICE custody are continually obstructed from attending criminal proceedings in violation of their constitutional rights.
Second, this criminal law obstruction, in turn, harms noncitizen defendants in immigration proceedings in what this Article calls “cyclical obstruction.” Immigration judges, as an evidentiary and adjudicatory matter, are permitted to and do often consider unresolved criminal proceedings against an individual to deny release from detention or deny immigration relief, leading to deportation.
These dual immigration consequences are harms in and of themselves and, moreover, interact with the criminal legal system to fuel cyclical obstruction. That is, the very detention that obstructs the criminal process perpetuates that detention, which in turn perpetuates the obstruction of criminal process, and so on. Deportation fuels the same cycle of obstruction. Obstruction of court access and the accountability deficit, then, shed light on the interaction between the criminal and immigration legal systems that occurs because immigration judges can consider the resulting unresolved charges.
This cyclical obstruction, and its evidentiary/adjudicatory origins, compels a new understanding of the criminal–immigration interaction. Much of the crimmigration scholarship has focused on the impact of one system on the other. Professor Stephen Legomsky, for example, has theorized that elements of the criminal legal system have been asymmetrically incorporated into immigration proceedings and adjudication—that is, criminal law enforcement methodologies but not criminal procedural protections have been incorporated.
Flowing in the opposite direction, scholars like Jennifer Chacόn,
Ingrid Eagly,
and Amy Kimpel
have theorized the ways immigration law and adjudication have begun to erode criminal procedural norms. This Article’s study of the obstruction of court access builds on this scholarship by articulating the bidirectional impact of the criminal and immigration legal systems and the ways in which the immigration system, quite literally, obstructs criminal process. This cyclical obstruction is significant: The noncitizen defendant stuck in immigration detention faces a double and cyclical jeopardy.
The third and final implication of obstruction of court access and the accountability deficit must be understood through the institutional design of the immigration apparatus. That design is one in which the jailor and prosecutor are the same entity and are commingled with the judge. Drawing on the growing body of scholarship that has examined the administration of immigration law through the lens of institutional design,
this Article posits that the roles of jailor, prosecutor, and judge lack sufficient internal checks and balances. Indeed, the same entity, ICE, is both the jailor who prevents noncitizen defendants from resolving criminal charges and the prosecutor who uses those pending charges against them to detain and seek to deport. In other words, ICE as the jailor and prosecutor is capable of effectively manufacturing evidence against a noncitizen defendant in immigration proceedings in the form of unresolved criminal charges or, at the very least, preventing noncitizen defendants from presenting exculpatory evidence. That evidence, or lack thereof, in turn, is then considered by immigration judges—whom scholars have critiqued as lacking independence because they are also governed by an executive department with the same immigration policy agenda
—to detain and deport noncitizen defendants, which further drives the cyclical obstruction of criminal court access. The implications of this institutional design in the context of obstruction of court access make the need for accountability all the more imperative.
Part III, in sum, tells the story of the implications of the accountability deficit in obstruction of court access. It demonstrates that immigration obstruction of court access quite literally obstructs criminal process in violation of individual constitutional criminal law rights, and it identifies two facets of the immigration system—one adjudicatory and one institutional design—that interact with the criminal system to create a cycle of harm in both criminal and immigration proceedings.
Part IV then turns to closing the accountability deficit. The focal point of the proposed solution is not about how to directly force ICE to produce a noncitizen defendant in criminal court, but rather to assign accountability to criminal prosecutors and ICE as the jailor and immigration prosecutor when obstruction of court access occurs. To do so, Part IV proposes a two-pronged remedy that draws upon the implications previously identified. The remedy is two-pronged because the consequences of the accountability gap are cyclical and flow to both the criminal and immigration systems. Accountability mechanisms, therefore, must attach in both. On the criminal side of the ledger, this Part proposes that if an individual is not able to appear in criminal court, the charges against them must be dismissed. As to immigration proceedings, this Part proposes that the BIA restrict immigration judges from considering pending or dismissed criminal proceedings against an individual if ICE has obstructed their ability to resolve those proceedings. Omitting such evidence mitigates the adjudicatory and institutional design concerns. While these remedies may seem improbable in the current political environment, they are what strict adherence to constitutional principles demands.