Publication Date

2025

Journal

Widener Commonwealth Law Review

Abstract

Every day, through internal adjudicative proceedings, agencies make thousands of rights determinations that affect critical matters such as financial security, family unity, personal safety, and individual liberty. Scholars and policymakers have recognized the significant impact that representation can have on adjudicative outcomes across the administrative state. Many agencies have implemented policies affirmatively seeking to boost an individual's ability to bring an advocate to assist with the adjudication process. In the immigration context, however, agencies have enacted procedural hurdles that have made it more difficult for individuals to reap the benefits of this assistance.

This Essay uses recent developments in the rules governing immigration courts as a vehicle to explore how agencies can alter procedural rules around administrative adjudication to discourage the effective assistance of counsel in these proceedings. It identifies how agency control over docketing practices, scheduling orders, and filing deadlines--often justified in terms of “efficiency”--can constructively limit an individual's ability to find an attorney, as well as that attorney's ability to effectively represent their client in the underlying proceedings. Acknowledging these downstream consequences reveals how agencies can operationalize adjudicative procedures to influence substantive outcomes, possibly violating their statutory and constitutional obligations in the process.

Volume

34

First Page

159

Publisher

Widener University Commonwealth Law School

Disciplines

Law

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