Abstract
With immigration enforcement sharply rising, noncitizens increasingly face deportation with few constitutional protections. Yet many remain at least entitled to a fundamentally fair hearing before an immigration court. Even before the current administration, however, immigration courts had become notorious for systematically violating noncitizens’ due process rights. And while other scholars have suggested broadscale reforms to tackle this problem, statutory and regulatory change has become all but unachievable. This Article offers a new and timely solution: reforming the framework for direct review of immigration court due process violations. In most jurisdictions, noncitizens asserting these violations must prove on appeal not only that an error occurred, but that it caused “prejudice” by certainly or likely changing the outcome of their case. As the Article reveals, this ex-acting prejudice standard is indefensible. It is not only often practically impossible to meet, but it also lacks a valid foundation and is inconsistent with the frameworks courts use to review due process errors in criminal, civil, and other administrative proceedings—and even the framework they use to review less critical, nonconstitutional errors by immigration courts themselves. Maintaining this unjustifiably high prejudice standard risks devastating consequences. This Article therefore proposes reforming the current framework by harmonizing it with the well-established harmless error doctrine, which governs direct review of due process errors in almost every other context. Grounded in existing jurisprudence and fundamental constitutional and administrative law principles, this could be achieved through federal circuit court litigation—and it could meaningfully deter the infringement of noncitizens’ increasingly vital due process rights.
Recommended Citation
S. E. Norton,
Immigration’s Prejudice Problem,
26
Nev. L.J.
511
(2026).
Available at:
https://scholars.law.unlv.edu/nlj/vol26/iss2/6