Reforming Removal (Deportation) Proceedings As An Essential Component Of Comprehensive Immigration Reform

 

By Japheth N. Matemu Esq.

[email protected]

Master of Laws (LL.M)-Immigration Law and Policy

American University, Washington College of Law

Immigration Attorney at www.matemulaw.com

INTRODUCTION

Aliens in the United States- both documented and undocumented are a particularly vulnerable class of people. This vulnerability is the result of a convergence of multiple forces against them. Economic pressure and the struggle over increasingly scarce jobs and resources has led to the rise of nativism and efforts to brand non-citizens as people who should not be in the United States in the first place; and therefore without any rights to claim a share of the economic resources available.

Aliens have also been seen as people importing undesired foreign cultures and mannerisms which are diluting traditional American values and therefore threatening the integrity of the American social fabric.

Politicians have identified the resulting resentment against aliens as low hanging fruit and have introduced legislative and regulatory measures aimed at promoting nativism and limiting or denying non-citizens the rights to equal protection and due process under the constitution.

For the foregoing reasons the Alien is locked in an unending legal struggle challenging laws that deny immigrants’ access to the courts, impose indefinite and mandatory detention, and discriminate on the basis of nationality. This is in addition to fighting constitutional abuses that arise from immigration enforcement at the federal, state, and local levels, including litigation and advocacy against state level anti-immigrant employment and housing laws, improper enforcement of federal immigration laws by local law enforcement, and worksite and home raids by federal law enforcement officials.

All these enforcement activities are aimed at deportation or as it is known today, removal, of aliens from the United States by the federal government. Removals are effected by the Federal Government by the institution of Removal Proceedings which are commenced by filing a Notice to Appear in Immigration court. This is the forum where Aliens fight for the opportunity to remain in the United States, the results of which fight are dependent on the favorable exercise of discretion by the Immigration Judge.

The immigration court is a part of the Executive Office for Immigration Review, an office within the U.S Department of Justice. The immigration court is presided over by an Administrative Judge referred to as the ‘Immigration Judge’.

The scope of this paper is the rights of Aliens in removal proceedings and examines the application of the due process clause under the Fifth Amendment. This paper concludes that immigrants before immigration courts have effectively been denied due process and proposes necessary reforms.

ARE ALIENS ENTITLED TO ENTER OR REMAIN IN THE UNITED STATES?

Immigration is the movement of people from country to country or territory to territory and is a global issue by definition. It refers to a situation where a country is asked to take in people who are not its citizens, either temporarily or permanently. It relates to the rights of people beyond a nation’s borders.

With the passage of a number of international conventions

1, there was recognition of a duty upon sovereign states to apply basic human rights within their territories and in areas under their jurisdiction. International law however, does not impose a duty upon states to liberally let in immigrants save in very limited and defined cases of refugees 2

Regardless of the general acceptance of these international conventions, immigration law and policy, is decided solely by the individual country. All nations, as a component of their sovereignty, reserve the right to decide who will be allowed to cross their borders, enter their territory or remain in their territory, and under what conditions.

Any person, who is not a refugee by definition, is at the mercy of the destination country whether or not to be allowed to enter or remain in that country in whatever capacity. This is a legitimate exercise of sovereignty. The international law of human rights allows every person to leave any country including his own but only imposes a duty upon states to allow entry to citizens and perhaps also to permanent residents. 4 It would be a contradiction of this freedom of movement if all countries then closed their borders to all non-citizens. It would mean that every person is in effect be forbidden from travel outside their country of citizenship.

The two main sources of international human rights law that govern the modern United States immigration policy are treaties and international customary human rights.

The United States has accepted to be bound by international human rights law by being a signatory of international treaties and conventions requiring the signatory nations to comply with certain human rights standards. This being the case, the United States has an obligation under international human rights law, not to excessively restrict the movement of people across its borders. The 1951 Convention on the Status of Refugees imposes a duty upon states not to return refugees to a place where their life is in danger (the concept of non-refoulement). The United States therefore should not turn away refugees indiscriminately and by the same token should not institute harsh immigration policies to make it ever more difficult for refugees to become part of the United States family.

Enforcement of immigration laws therefore ought to be sensitive to human rights and comply with international human rights law even given that each individual nation has discretion to decide under what conditions immigrants and even refugees can be admitted.

REGULATION OF IMMIGRATION UNDER UNITED STATES LAW

Immigration law in the United States is incredibly complex.

There are numerous agencies and sources of law govern and regulate the immigration system. These sources include the United States Constitution, the Immigration and Nationality Act, and international human rights norms, among others. There are multiple federal agencies charged with the responsibility of implementing immigration laws including:

1. The U.S. Citizenship and Immigration Services;

2. U.S. Immigration and Customs Enforcement;

3. Executive Office for Immigration Review;

4. The Department of Health and Human Services;

5. U.S. Department of State; and

6. U.S. Department of Labor;

There is no specific power in the constitution of the United States to regulate immigration. As a matter of fact, the Constitution does not grant any entity the power to regulate immigration except in the context of naturalization.

Article I, Section 8 of the Constitution appears to give Congress the power to establish a uniform system of naturalization: Article 1, Section 9 is also seen as a source of federal control over immigration, whereby Congress is given power over “migration or importation.”‘

The original meaning of the Constitution does not give Congress the power to regulate immigration either.

While these clauses do not grant Congress specific power to remove or deny admission to aliens, the plenary power of the federal government to regulate immigration has been found to be an inherent sovereign power

The Supreme Court has held that Congress has the power to regulate immigration based on its inherent powers

The Immigration and Nationality Act (INA) of 1952 consolidated all immigration laws into one comprehensive statute and governs United States immigration policy. The INA,has undergone multiple amendments since 1952, and is the primary source of immigration law in the United States.

NATURE OF REMOVAL PROCEEDINGS

When the United States identifies an alien for removal, it files a document called a notice to appear in the Immigration court having geographical jurisdiction over the alien.

This Notice to Appear is a formal document containing the reason for which the alien is sought to be removed.

8The Alien is served with the Notice to Appear before the immigration court and if they are removable, must show eligibility for any form of relief from removal. These reliefs are in the form of Asylum, 9 Cancellation of Removal, 10 Adjustment of Status, 11 and Voluntary departure. 12 An Alien found to be ineligible for asylum may be found to be eligible for Withholding of Removal and applications under the United Nations Convention Against Torture. 13 All these forms of relief are discretionary with the exception of Withholding of Removal.

Removal proceedings have been characterized as administrative proceedings. Due process in such a proceeding ordinarily does not require adherence to judicial rules of evidence unless deviation would make the Proceeding fundamentally unfair. The sole criterion in appraising documentary evidence lawfully obtained is whether it has probative value and whether its use is consistent with a fair hearing. Matter of Lam, 14 I&N Dec. 168 (BIA 1972). Further the Benchbook goes on to say that “The strict rules of evidence are not applicable in deportation proceedings. Matter of Wadud, 19 I&N 182 (BIA 1984). Immigration proceedings are not bound by the strict rules of evidence.

Baliza v. INS, 709 F.2d 1231 (9th Cir. 1983); Dallo v. INS, 765 F.2d 581 (6th Cir. 1985); Longoria-Castaneda v. INS, 548 F.2d 233 (8th Cir.), cert. denied, 434 U.S. 854 (1977).”

Here is where the concerns with due process begin. In 1889, in the infamous Chinese Exclusion Case the United States Supreme Court laid the foundation for the now well-established rule that immigration removal proceedings are civil, not criminal, in nature. The reason why immigration proceedings are designated as administrative proceedings is that removal proceedings are not for the purposes of punishing a criminal offence but are for the purposes of redressing civil violation of immigration laws. For this reason therefore, the alien in removal proceedings is not entitled to the constitutional protections available in criminal proceedings. On the other hand, though immigration proceedings are for civil violations of immigration law, they are not afforded the same standards and protections available in civil procedure.

Looking at the nature of immigration proceedings, it is difficult to distinguish between them being civil and being criminal proceedings. The alien subject to removal proceedings is basically subjected to the same structures, treatment and procedures under criminal law minus the constitutional protections under criminal law.

Aliens are processed in civil immigration matters in detention institutions and by personnel that resemble, and in some instances, directly overlap with criminal law enforcement. Most removal proceedings are instituted as a consequence of some criminal offence. Local and state law enforcement officers typically start the process that begins as a criminal prosecution which seamlessly transforms into removal proceedings culminating in removal. During this whole process there is no difference felt by the alien and the line between criminal and immigration proceedings is blurred.

To the alien, it is one continuous process from arrest to removal. Substantive immigration law has become ever more harsh and punitive. Aliens are routinely detained in prisons and jails in what has become the fastest-growing incarceration system in the United States: 3 million immigrants have been held in detention facilities across the country during the past decade.

In these ways, civil immigration enforcement has become indistinguishable from criminal law enforcement because it employs the same personnel, priorities, and resources as criminal law enforcement.

As a matter of fact, in the mind of the public, and the aliens involved, immigration enforcement is seen as criminal law enforcement and aliens in the process are often referred to as ‘criminal or ‘illegal’ aliens without distinction. In my view, removal proceedings are essentially criminal proceedings minus the constitutional protections inherent in criminal proceedings. The designation of removal proceedings as civil in nature has the effect of making substantive due process protections mostly inapplicable to aliens in removal proceedings.

IMMIGRATION PROCEEDINGS ARE ESSENTIALLY CRIMINAL IN NATURE

The current Supreme Court doctrine has designated all removal proceedings as civil in nature therefore all procedural rights inherent in criminal proceedings are absent in the context of removal proceedings.

The Supreme Court has held that Sixth amendment protections are inapplicable to removal proceedings 18.Courts have refused to view removal as a punishment, and therefore have held on to the notion that since removal is not punishment 19 for a crime, then removal proceedings are not criminal in nature and therefore constitutional protections inherent in criminal proceedings should not be available to aliens in removal proceedings. My view is that once a removal order is issued, then it operates as a punishment because it is akin to being banished from one’s home; in most cases forever where the removal is of people with established residence as opposed to those removed at the point of entry who have not established residence in the United States. Once an alien is removed from the country, he is separated forever from his family, property, investments and the life he has known sometimes having built that life for many years. The amounts of losses following removal are catastrophic and sometimes cannot be compared to the prescribed punishment for actual crimes. Take for example the situation where one person can be jailed for ten days for possessing marijuana while another is removed from the United States as the result of issuing a check for $10.00 that was returned by the bank just because he is not a United States Citizen. Though some federal judges have characterized removal orders as being punitive in nature, this is minority view that has not gained any traction.

Due to the seriousness of the consequences of removal from the United States and its effect on human life, aliens ought to be accorded the same constitutional protections as those charged with criminal offenses because the basis for those protections is the fact that a person charged with a criminal offence is faced with the loss of liberty due to potential imprisonment.

Deportationis a form of banishment. The two terms are used interchangeably. Thus Black’s Law Dictionary defines deportation as “banishment to a foreign country….” Black defines banishment as “‘. . . a punishment for a specified period of time, or for life.” In the dictionary world, then, deportation is banishment and banishment is punishment; ergo, we might assume that deportation-at least so far as the dictionaries are concerned-is punishment.

Thus we turn to Black’s Law Dictionary (and most of the dictionaries speak the same language) and see that “punishment” is defined as “any pain, penalty, suffering, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him, or for his omission of a duty enjoined by law.”

The following text can provide further understanding of deportation as punishment:

“Funk & Wagnall’s New College Standard Dictionary defines “punishment” as “… . penalty imposed, as for transgression of law; hence, any ill suffered in consequence of wrongdoing.” This, I suggest, provides a clue to the nature of the ambiguity of the term “punishment.” It designates at least four elements: (1) The act which incurs the sanction (e.g. failure to register under the appropriate provisions of the McCarran Act), (2) The sanction (deportation), (3) The reason, policy or justification for imposing the sanction (e.g. intent of Congress to exercise its sovereign or foreign policy power through regulation of aliens), (4) The effect of the sanction, the ill suffered (uprooting, separation from family, loss of job, degradation, etc.). And when the Court says, “Deportation is not punishment,” the Court is referring to the relationship between Elements No. 2 and No. 3, assuming that this is the intent of Congress or that Congress can have an intent. ”

Deportation therefore has every character of punishment. It is a sanction for violation of a law and involves detention in many cases. Just like any other punishment, it involves infliction of suffering akin to criminal punishment. Once it is recognized that deportation is punishment, and perhaps punishment of a criminal character for something that resembles a crime, then the Eighth Amendment, the Ex Post Facto Clause and the Due Process Clause should therefore be applicable.

In removal proceedings, the consequences are even graver. Once an alien is removed, he is inadmissible for a period of five years or longer.

Immigration proceedings have every hall mark of criminal proceedings. They typically start with an arrest for a crime, unrelated to immigration. The arrest leads to detention with or without a conviction for the offense. The federal government through Immigration and Customs Enforcement, after ascertaining that the alien is removable from the United States then typically places a detainer or an immigration hold,meaning the alien should not be released until he has been processed for the immigration violation regardless of the outcome of the arrest for the state or local criminal offence. Once the alien is processed and found removable, Immigration and Customs enforcement will the file a Notice to Appear and commence removal proceedings.

A lengthy detention may follow during the removal proceedings unless the alien is able to secure bond. Many aliens are ineligible for bond because they are subject to mandatory detention depending on the criminal offense they have been convicted of. Once a removal order is issued against him, the alien may be detained for another lengthy period of time before being forcibly shipped to the destination country.

This process is indistinguishable or even worse than a criminal proceeding and a proceeding that yields such drastic results ought to be accompanied by adequate legal protections and standards available under international human rights law recognizing the need for every country to treat even non-citizens with decency.

Treating them with decency means in my view, at least a right to be represented by counsel and at least the same protections available to citizens in criminal proceedings.

It is therefore wrong for the United States to treat non-citizens differently and to subject them to a draconian system that is characteristic of removal hearings that is contrary to its own constitution and results in the denial of non-citizens of the rights and protections available under criminal law and which protections are held to be basic rights that should not be denied to any person.

The Supreme Court dissents inFong Yue Ting are noteworthy Justice Brewer emphatically states:

Deportation is punishment. It involves first an arrest, a deprival of liberty; and, second, a removal from home, from family, from business, from property. . . . It needs no citation of authorities to support the proposition that deportation is punishment. . . . But punishment implies a trial: “No person shall be deprived of life, liberty, or property, without due process of law.”

DUE PROCESS CONCERNS

Proceeding from the premise that immigration proceedings have the character of criminal proceedings in practice, one of the most troubling realities is that congress can turn any criminal offence into a deportable offense retroactively.

This means that if an alien was convicted of, or admitted a criminal offense that was not deportable at the time, he can still be found removable by a subsequent change in laws. This situation is not permitted by the United States Constitution with regard to criminal laws.

 Courts have however held that, Congress can, and has passed ex-post facto laws expanding grounds of removability which did not exist at the time the subject conduct occurred.

The Antiterrorism and Effective Death Penalty Act (AEDPA),

combined with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)31 [hereinafter referred to as the 1996 Immigration Acts] extensively amended the Immigration and Nationality Act of 1952 (INA). IIRIRA, enacted a few months after AEDPA, went, repealed section 212 (c) of the INA, replacing it with a new section excluding from the class entitled to relief from removal those persons who had been previously “convicted of any aggravated felony.”

It is against all notions of fairness and basic justice to subject any person to such a drastic eventuality. It appears to be against every sense of justice for a non-citizen to suddenly arrested and detained for removal because of a decades old crime that has suddenly become a deportable offense due to a newly enacted law.

The fact that a number of immigrants violate the law during their United States residence does not justify the nation’s policy, as reflected in the 1996 Immigration Acts, of disregarding the Constitution and curtailing rights of resident aliens by retroactively punishing them for criminal convictions obtained years before 1996.

Another issue of concern is the right to counsel.

The Immigration and Nationality Act (INA), which governs removal proceedings, has a statute that provides for the “Right to Counsel”, but at no expense to the government.This means that aliens are not entitled to representation by counsel and must therefore find one for themselves if they can afford it.

The right to counsel has been long established in United States jurisprudence for indigent persons in criminal proceedings.

The rationale being that, the right to liberty is an important one and therefore the right to counsel is essential

The Supreme Court has also held that the right to counsel may also be applicable to cases that are not criminal in nature.

Immigration law is very complex and the stakes are very high. The alien in removal proceedings is in a position of being detained for an indefinite period of time or being removed from the United States usually permanently. This is one situation that is akin to loss of everything that the alien has including family, investments, a livelihood and everything one holds dear.

Standing in front of an immigration judge, an alien is expected to plead his case, know what forms of reliefs are available to him and the legal intricacies of proving eligibility for those reliefs. He is expected to know the law and procedure and know what evidence to produce and how to support his case for every relief that he may be eligible for.

On the other side, is a seasoned trained counsel for the government who has entirely no obligation towards the alien and whose only goal is to obtain an order of removal as fast as possible and move on to the next case. The Government counsel is well trained and experienced in immigration law and the counsels only duty is to prove that the alien is not a citizen of the United States and is removable.

In applications for relief from deportation, the burden of proof is on the alien to show eligibility for the relief sought.

With stakes that high, and the consequences so dire, the right to be represented by counsel is critical. The question then arises both from the human rights and the American jurisprudence perspective as to why an alien, who may well be eligible for relief from removal, should be left to his own devices and be removed only for the reason that he either did not know that he was eligible for some relief from deportation, or did not know how to marshal the right evidence and testimony to demonstrate eligibility.

These aliens are banished from the United States and leave their families, children and jobs and are sent back to countries which they no longer recognize and probably no longer welcome, to start a new life. This in my view is not only punishment, but it is cruel and unusual punishment. Has such an alien had the benefit of representation by counsel, he would probably have avoided deportation.

It is not only decent but also fair in my view, to recognize the need for entitlement to representation by counsel in removal proceedings.

It is interesting to note that, the same alien, had he been charged with a minor criminal offense, with much less serious consequences, would have been entitled to representation by counsel and other procedural protections provided under the United States constitution.

Mandatory detention is another issue that raises equal protection concerns. There is a class of aliens that are subject to mandatory detention.

38 The Immigration Court has no bond/custody redetermination authority over those aliens defined in section 236(c) (1) of the Act unless it falls within the enumerated exception39

Aliens subject to mandatory detention cannot be released on bond for the duration of their removal proceedings and even afterwards

40 if an order of removal is issued against them. If any alien falls into this category, then he can be looking at a lengthy period of detention regardless of what the merits of his case or his personal circumstances are. Aliens who fall into this mandatory detention class are those who have been convicted of certain offenses41 or who have admitted to have committed certain offenses or who are thought by the government to be likely to commit certain offenses like engage in acts of terrorism. The immigration judge in effect has no jurisdiction to even consider the release of the following classes of aliens on bond:

1)Those considered to be “arriving aliens” under 8 C.F.R. §1.1(q);28

2) Those “described in” the terrorism and security related ground of deportability, INA § 237(a)(4), 8 U.S.C. § 1227(a)(4);

3) Those subject to mandatory detention under INA § 236(c)(1), 8 U.S.C. § 1226(c)(1)

4) Those in exclusion proceedings;

5) Those with final administrative orders of removal under INA § 242(a)(2), 8 U.S.C. § 1252(a)(2).

Mandatory detention is a very serious affront to due process. The grounds for mandatory detention look arbitrary and even cruel. Mandatory detention takes away an immigration judge’s individualized determination as to whether it would be beneficial to keep an alien in custody. There is hardly any other law that permits mandatory detention of any person, including persons charged with very serious criminal offenses.

The question then arises as to what is the rationale for mandatory detention of immigration violators? What is the Government interest that is so important that it

overrides the liberty of an individual who has done nothing more than violate an immigration regulation?

If for example the alien subject to mandatory detention has lived in the United States for a long period of time, say forty years and has children, grandchildren, a good job and a successful business; would it be beneficial to detain such a person during immigration proceedings?

Probably another question that arises is what the purpose of mandatory detention is.

The general rationale for any detention pending the determination of a case against an individual is either that the individual is a flight risk or poses a danger to the society. If those concerns are absent, what then would be the purpose of mandatory detention? Looking at the classes of aliens subject to mandatory detention and others that are not, it is hard to tell why some are subject to mandatory detention while others are not. For example; an alien who has committed prostitution

43 is subject to mandatory detention while one who assaulted another is not unless somehow the assault can be classified as an aggravated felony. 44

This lack clear rationale as to why some aliens are mandatory detention and others are not also raises equal protection concerns.

Taking away the jurisdiction of an immigration judge to release an alien on bond does not advance immigration policy. An immigration judge should be permitted to consider the individual merits and circumstances of a case in order to reach a decision that is tailored to articulable Immigration policy. There would be no reason to hold an alien in detention especially if he had a meritorious case, clear eligibility for relief, is not a flight risk and not a danger to society. Mandatory detention also interferes with the ability of the alien to seek legal representation, consult with his attorney and family, prepare his evidence and provide for his family while in removal proceedings.

Detention of aliens is an added expense to the government that can be eliminated or applied to those selected cases where the detention would be serving a clear and articulable purpose that advances immigration policy and is sensitive to the rules of natural justice and fairness and consistent with international human rights norms and American legal values.

In immigration proceedings, discovery is very limited. The government usually has the ‘A’ file of the alien in removal proceedings. This is a record of the immigration history of the alien. The government counsel is not obligated to share any information of the ‘A’ file of the alien even if such information may benefit the alien and the court in determining whether the alien qualifies for a form of relief. Take for example unbeknownst to the alien, there is an approved petition in the ‘A’ file filed by a relative for the benefit of the alien and which would permit the alien to apply for adjustment of status. The counsel for the government can withhold this information from both the court and the alien and since the alien has a duty to prove eligibility for relief, he could be unable to do so and get removed as a result.

Discovery in the immigration proceedings context is very limited. It can be exercised in relation to only prehearing statements,

45 subpoenas,46 and depositions.

There is no provision for disclosure of information such as is standard procedure in civil and criminal cases for example disclosure of previous filings, prior statements or copies of documents previously issued. The only procedure available is by making a request under the Freedom of Information Act (FOIA)

48 which can take very long and has to be made to a centralized office in Lee’s Summit, Missouri. 49

The Immigration Judge is not obligated to wait for this information or grant a continuance while this information is made available to the alien. The Alien may be long removed before this information becomes available. FOIA requests typically delay due to a large backlog of requests.

One of the basic tenets of a fair hearing is to exchange all information available to the parties that could assist the court to reach a fair outcome after having an opportunity to fairly consider each party’s case. Immigration judges are attorneys appointed by the Attorney General to serve as independent arbiters of immigration issues and therefore have a duty to be impartial. The immigration policy objectives cannot be achieved unless immigration courts make sound decisions granting relief where merited. There is no way for a judge to know if a form of relief is merited or not if counsel for the government chooses not to disclose information helpful to the

Alien. The integrity of the United States immigration system depends in part, on the integrity of the immigration judges and the reliability of the results that are reached as a result of the proceedings.

All that it would require to change this state of affairs is just to put in a system which requires every alien in removal proceedings to get a copy of his ‘A’ file. This would save a lot of time and also improve the fairness and also the integrity of immigration proceedings. Prosecutors in criminal proceedings are required to automatically hand over such evidence to the defense, even if the defense doesn’t request it, and a showing that this rule was violated can sometimes result in a conviction being reversed. This rule ought to apply to removal proceedings too.

 Some Federal Circuit Courts of  Appeal

51 reviewing petitions from the Board of Immigration Appeals have raised concerns about this very situation and have even held that the lack of some meaningful rules of discovery could amount to a denial of due process or deprive the alien of a reasonable opportunity to be heard.

Aliens ought to be entitled to discovery if fairness is to be seen in removal proceedings. Every developed legal system recognizes that the ends of justice can only be reached if a court has at its disposal all the relevant information it needs to reach a fair and just conclusion. Due process requires a reasonable opportunity to be heard and if the government can withhold important information that could be assistance to the court and the alien, then the integrity of the immigration system could be in jeopardy.

The federal government has the discretion to commence proceedings against an alien in any immigration court in the nation regardless of the actual residence of the alien at the time of arrest. This has an adverse impact on due process because it may make it very difficult or even impossible for an alien to meaningfully present their case. If an alien is transported to detention several states away, this takes him away from his family, his witnesses and his attorneys at times and therefore raises due process concerns. Such action by the government put an undue burden on the alien in terms of cost and logistics.

If immigration proceedings could be handled in the same way as criminal proceedings whereby removal proceedings would be required to be conducted within the state or locality where the alien has a permanent address, this would be very helpful to the alien in terms of fairness and due process. Making this change may involve some additional costs but if the key objective of removal proceedings was to have a fair and uniform application of immigration policy, then the benefits would far outweigh the cost.

The application of the exclusionary rule under the fourth amendment is very limited in removal proceedings and is another area of great concern in terms of due process.

The Immigration Judge Benchbook states that. “Deportation and Removal hearings are administrative proceedings that are civil in nature. Due process in such a proceeding ordinarily does not require adherence to judicial rules of evidence unless deviation would make the proceeding fundamentally unfair. The sole criterion in appraising documentary evidence lawfully obtained is whether it has probative value and whether its use is consistent with a fair hearing. Matter of Lam, 14 I&N Dec. 168 (BIA 1972).”

The meaning of this general statement is that the exclusionary rule has very little application in immigration proceedings.

53 The only time that the exclusionary rule can be applied in the context of removal proceedings is when the fourth Amendment violation is egregious.

A violation will only be found to be egregious if the evidence was obtained by deliberate violations of the fourth amendment or by conduct a reasonable officer should have known is in violation of the constitution.

The exclusionary rule was has developed as one great tool for ensuring fundamental fairness of criminal proceedings and to make sure that the evidence obtained in violation of the fourth amendment was not tainted by illegality. The requirement that the violation of the fourth amendment be egregious for it to be excluded unjustifiably imposes an additional burden on the alien in removal proceedings. The Evidence obtained in violation of the fourth amendment infects the proceedings in which it is submitted and dilutes the integrity, reliability and fairness of the decision reached as a result of considering the tainted evidence. Proceedings that have such serious consequences as removal proceedings must be beyond reproach or at least have the same level of fairness as criminal proceedings which they resemble in just about every respect. It is the lives and liberty of human beings at stake and care must be taken to make ensure just results.

In order to create uniformity and consistency with the general principles of criminal law, the requirement that Fourth Amendment violations be egregious before the evidence so obtained is excluded needs to be dropped. The question arising would be why the violation needs to be egregious before the evidence obtained be excluded. Criminal law requires only a violation of the fourth amendment. There is no justification for the ‘egregious’ requirement. If aliens would be able to benefit from the fourth amendment protections when charged with a criminal offense, why not be accorded the same protections when they are put in removal proceedings?

There is absolutely no explanation for this distinction.

The Fifth Amendment to the U.S. Constitution gives individuals the right to refuse to answer any questions or make any statements, when to do so would help establish that the person committed a crime or is connected to any criminal activity. This right is also known as the Fifth Amendment privilege against self-incrimination.

In the context of immigration proceedings, there is no application of the Fifth Amendment protection against self-incrimination.

In a deportation hearing there is no prohibition against drawing an adverse inference when a petitioner invokes his Fifth Amendment right against self-incrimination.

 In immigration proceedings, no warnings need to be given to an alien about the potential use of his self-incriminating statements. The board of immigration appeals in Matter of Guevara held that “A respondent in deportation proceedings who remains silent when confronted with evidence of his alienage, the circumstances of his entry, or his deportability, may leave himself open to adverse inferences, which may properly lead in turn to a finding of deportability against him”

The denial of the application of the Fifth Amendment protection in immigration proceedings raises the issue of fairness and for what purpose? The government has a duty to prove that an alien is removable by clear and convincing evidence.

It would therefore be contradictory to require the government to prove be clear and convincing evidence that the alien is removable as charged and on the other hand draw adverse inferences from the silence of the alien in the context of removal proceedings. The alien has a duty to articulate eligibility to relief from removal, but silence upon inquiry on a particular issue ought not be construed adversely. That would be impermissibly relieving the government of its burden of proof and charging it upon the alien. This scenario runs against a basic protection under the constitution and ought to be addressed for the sake of due process and consistency with established American legal standards. The government should not unduly burden aliens by unjustifiably relieving the government of its duty to prove removability by clear and convincing evidence.

CONCLUSION

The Universal Declaration of Human Rights states that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status”.

59 In addition, the International Covenant on Civil and Political Rights,60

(“ICCPR”), also prohibits discrimination and

provides protection against “discrimination on any ground such as race, color, sex,language, religion, political or other opinion, national or social origin, property, birth, or other status.

Even further, the International Covenant on Economic, Social and Cultural Rights, (“ICESCR”), prohibits discrimination on these same grounds.

The United States has a duty under international law to treat aliens within its borders in accordance with international human rights norms and therefore should not discriminate against aliens because this would be discrimination based on ‘national origin’. The United States should apply all the laws uniformly to all citizens and non-citizens alike in order to ensure that immigration proceedings, like any other legal proceedings, are fair and just and adhere to the due process clause of the Fifth Amendment.

The United States should also re-characterize removal proceedings as criminal proceedings in nature because they resemble criminal proceedings in just about every aspect. This will begin by calling removal of Aliens from the United States a punishment; because it is a punishment in every respect and many judicial voices have already alluded to the fact that it is indeed a punishment. Once removal proceedings are properly re-characterized as criminal in nature, then all the constitutional protections available under criminal law will apply and therefore justice and fairness will become a part of our immigration proceedings. It will no longer be necessary to go to great lengths to attempt to reconcile inconsistent legal conclusions to accommodate unsustainable legal positions.

Endnotes

1. Universal Declaration of Human Rights, art. 13 (2), G.A. Res. 217 A (III), U.N. Doc. A/810 at 71 (Dec. 10, 1948), International Covenant on Civil and Political Rights, art.

12(4), Dec. 16, 1966, 999 UNTS 171; Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, art. 3(2), E.T.S. No. 46; American Convention on Human Rights, art 22(5), Nov.22, 1969, 1144 U.N.T.S. 123

2. United Nations Convention Relating to the Status of Refugees, art. 1 July 28, 1951, 1989

U.N.T.S 137 (1951 convention).

3. Chae Chan Ping v. United States, 130 U.S. 581, 9 S. Ct. 623, 32 L. Ed. 1068 (1889)

4. Universal Declaration of Human Rights, art. 13 (2), G.A. Res. 217 A(III), U.N. Doc. A/810 at 71 (Dec. 10, 1948) [hereinafter UDIHR]; International Covenant on Civil and Political Rights, art. 12(4), Dec. 16, 1966, 999 UNTS 171; Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, art. 3(2), E.T.S. No. 46; IAN BROWNLIE, BASIC DOCUMENTS ON HUMAN RIGHTS 347(3d 1992); African [Banjul] Charter on Human and Peoples’ Rights, art. 12(2), June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982); American Convention on Human Rights, art 22(5), Nov.22, 1969, 1144 U.N.T.S. 123; see also YAFFA ZILBERSHATS, THE HUMAN RIGHT TO CITIZENSHIP 43-56 (2002).

5. Chae Chan Ping v. United States, 130 U.S. 581, 9 S. Ct. 623, 32 L. Ed. 1068 (1889)

6. Fong Yue Ting v. U.S., 149 U.S. 698 (1893) (holding Congress has the power both to deport aliens in the United States and to Prescribe the rules accompanying these procedures);

7. Immigration and Nationality Act(INA) § 239(a)(1); 8 CFR 1003.14(a)

8. INA § 239(a)(1)(C)

9. INA § 241(b) Torture Convention

10. Cancellation for Lawful Permanent Residents – INA § 240A(a); Cancellation for Non-Lawful Permanent Residents – 240A(b)

11. INA § 245

12. INA § 240B(a); INA §240B(b)

13. INA § 241(b)(3); 8 C.F.R. § 1208.16(c)(2)

14. INA § 241(b)(3)(B)

15. Chae Chan Ping v. United States, 130 U.S. 581 (1889).

16. American University School of Communication, Investigative Reporting Workshop- 10/17/2011.

17. . INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing.”)

18. Zakonaite v. Wolf, 226 U.S. 272, 275 (1912) (holding that proceedings to enforce immigration regulations do not involve Sixth Amendment protections)

19. Fong Yue Ting, 149 U.S. at 698.

20. Scheidemann v. I.N.S., 83 F.3d 1517, 1527 (3d Cir. 1996) (Sarokin, J., concurring) (writing that “[t]he legal fiction that deportation following a criminal conviction is not punishment is difficult to reconcile with reality, especially in the context of this case. Mr. Scheidemann entered this country at age twelve; he has lived here for thirty-six years; he has been married to an American citizen for twenty-four years; he has raised three children all of whom are American citizens; his elderly parents are naturalized citizens; two of his four siblings are naturalized American citizens, and all four of them reside permanently in the United States; he has no ties to Colombia, the country to which he is to be deported; and he has fully served the sentence imposed upon him. If deportation under such circumstances is not punishment, it is difficult to envision what is. I think the deportation of aliens for the commission of crimes is clearly punishment. If Mr. Scheidemann’s deportation could be characterized, as it should be, as punishment, I would conclude that the statutory bar to the discretionary waiver is a violation of the Ex Post Facto Clause of the Constitution.”).

21. 27 U. Kan. City L. Rev. 213 1958-1959 at page 217

22. INA § 212(a)(9)(A)(i)

23. (INA) Section 287(g), codified at 8 U.S.C. § 1357(g

24. 8 C.F.R. §§ 1236.1, 1003.19 (2006); see also 8 C.F.R. § 1003.19(e) (2006); Matter of Uluocha, 20 I&N Dec. 133 (BIA 1989).

25. INA 241(a), 8 U.S.C. § 1231(a) (2000)

26. The United Nations’ Charter was adopted in 1945. It “reaffirmed faith in fundamental human rights, and dignity and worth of the human person” and committed all member states to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”.

27. Fong Yue Ting v. U.S., 149 U.S. 698 (1893)

28. . INS v. St. Cyr, 533 U.S. 289 (2001) (holding that Congress may retroactively change removal grounds so long as it clearly expresses its desire to do so).

29. United States Constitution in Article 1, Section 9, Clause 3.

30. Pub. L. 104-142, § 401-443, 110 Stat. 1214, 1258-81 (1996), codified at 18 U.S.C.

31. Pub. L. 104-208, Div. C, 110 Stat. at 3009-546 through 3009-724 (1996), 8 U.S.C.

§ 1101 et seq. (West 2000) [hereinafter 1996 IMMIGRATION ACT].

32. 110 Stat. 3009-597, § 304 (b), creating 8 U.S.C. § 1229b (a) (3) (1994 ed., Supp.

V) (emphasis added); see 8 U.S.C. § 1101 (a) (43) (definition of aggravated felony).

33. Harisiades v. Shaughnessy – 342 U.S. 580 (1952)

34. 8 U.S.C. § 1362 (1996). See also 8 U.S.C. § 1229a(b)(4)(A) (2006).

35. Gideon v. Wainwright, 372 U.S. 335 (1963)

36. In Re Gault, 387 U.S. 1 (1967).

37. Matter of S-Y-G-, 24 I&N Dec. 247 (BIA 2007); Matter of Jean, 27 I&N Dec. 373 (BIA 2002).

38. INA 236(c)(1) ( However, an alien may request a hearing before an Immigration Judge to contest the INS determination that he or she is subject to mandatory detention under section 236(c)(1) of the Act. See 8 C.F.R. §§ 1003.19(h)(1)(ii), 1003.19(h)(2)(ii) (2006).

39. The exception provides that the alien may be released if it is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or to protect an immediate family member of such witness. The alien must satisfy the Attorney General that he or she will not pose a danger to the safety of other persons or of property and is likely to appear for hearings.

40. INA 236(c)(1)

41. INA 212(a)(2)

42. 8 C.F.R. § 236.1(c)(11), § 1236.1(c)(11); 8 C.F.R. § 1003.19(h)(2).

43. INA §212(a)(2)(D)

44. INA 242(a)(2)

45. See 8 C.F.R. § 1003.21 (2007)

46. See 8 C.F.R. § 1287.4 (2007)

47. See 8 C.F.R. § 1240.7(c) (2007)

48. U.S. Citizenship & Immigration Services, Fact Sheet: Freedom of Information Act (Feb. 28, 2007),

available at

http://www.uscis.gov/files/pressrelease/FOIAProcessingO22807FS.pdf

49. Jill Sheldon,

FOIA In Flux,

IMMIGRATION DAILY, http://www.ilw.com/articles/2005,0726 -Sheldon.shtm

50. 18 U.S.C. § 3500 (1994); Fed. R. Crim. P. 16; Brady v. Maryland, 373 U.S.

 

83 (1963).

 

Niam v. Ashcroft, 354 F.3d 652, 659-60 (7th Cir. 2004)

52. Dent v. Holder, 627 F.3d 365, 373 (9th Cir. 2010)

 

53. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984)

 

54. Martinez-Medina, 673 F.3d at 1033-34

 

55. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018, 1016-19

 

56. Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011)

 

57. . Matter of Guevara, 20 I&N Dec. 238 (BIA 1991)

 

58. INA Section 240(c)(3)(A

59. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948)

60. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); S. Treaty Doc. 95-20, 6 I.L.M. 368 (1967)

61. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; S. Exec. Doc. D, 95-2 (1978); S. Treaty Doc. No. 95-19,6 I.L.M. 360 (1967)

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