When Possible, Treat Immigrants As Criminal Defendants, Not As Criminals

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

An essay in today's New York Times, "Unexceptionalism:  A Primer," by the novelist, E. L. Doctorow, describes in four "phases" how America can take steps to become unexceptional, that is, "indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries in the world."

Phase one begins with Bush v. Gore, a ruling that "ignore[s] the first sacrament of a democracy and suspend[s] the counting of ballots in a presidential election." 

Phase four ends with a naked power grab:

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If you're a justice of the Supreme Court, decide that the police of any and all cities and towns and villages have the absolute authority to strip-search any person whom they, for whatever reason, put under arrest.

In phase three, Doctorow turns to immigration -- the form of authentic American exceptionalism to which this blog is dedicated -- and says (ironically, to my law-trained mind):

When possible, treat immigrants as criminals.

He apparently assumes that exceptionalism declines when the foreign-born among us are locked away for trivial or modest immigration violations, even when they pose no threat of escape or of harm to society. He might also be suggesting that by separating them from their U.S. citizen relatives after their right to be in the U.S. has been tested and denied in removal (deportation) proceedings too often threatens American families with poverty and a life of needless suffering. 

In this he is right.  Immigrant detention -- promoted by a smart "ALEC" in retreat -- has become a huge business, an industry so successful that it lacks adequate facilities to house immigrant detainees, one where even children as young as eight are placed in "emergency" quarters on military bases.

If Doctorow instead meant to refer to the treatment of suspected wrongdoers under either the immigration or the criminal laws, this otherwise brilliant author is flat wrong. 

Criminal suspects are guaranteed rights that people charged with violating the immigration laws can only envy. Defendants in criminal trials in most cases enjoy the right to a trial by jury. Their guilt must be established by proof beyond a reasonable doubt. Under the Ex Post Facto Clause of the U.S. Constitution, they may only be convicted for conduct that Congress made illegal before the forbidden act occurred. Indigent criminal defendants are entitled to appointed defense counsel at government expense.

Whether rich or poor or in between, criminal suspects have Constitutionally endowed Miranda rights (the warning that anything they say to police can and will be used against them in a court of law). They have a right to examine any exculpatory evidence in the government's possession, and the right to confront the witnesses against them and insist that the court exclude purely hearsay evidence. The judges who preside in criminal cases are subject to the canons of judicial ethics. Criminal proceedings are transcribed by court reporters so as to establish an accurate record and make sure that the right to appeal a conviction is preserved.

Because of the legal charade that removal proceedings are "civil" and not "criminal" in nature, that deportation is not "punishment," foreign citizens whose immigration status is challenged at a removal hearing before an immigration judge enjoy no such rights.

Although not treated as punishment under the immigration laws, removal (or its virtual twin, inadmissibility) hurts no less.  A former Attorney General might just as well have been talking about removal rather than inadmissibility in Matter of S- and B-C, 9 I & N Dec. 436, at 447 (BIA 1960; A.G. 1961), when he said:

Shutting off the opportunity to come to the United States [or, as I would also put it, forcing someone to leave] actually is a crushing deprivation to many prospective [and current] immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States.

If America treated immigrants in removal proceedings as if they were criminal defendants, the foreign-born whose status is at risk would enjoy significantly greater rights, and the harsh rule of immigration law would be tempered with justice.  At present, however, respondents in immigration proceedings are at greater likelihood of being found at fault than criminal defendants. Here's why:

• No presumption of innocence but proof "beyond doubt." An applicant for admission to the U.S. as well as a so-called "arriving alien" is not presumed innocent.  Rather s/he must prove "clearly and beyond doubt [that s/he is] entitled to be admitted and is not inadmissible. . . ." The "clearly and beyond doubt" burden of proof imposed on the foreign citizen is even more difficult to establish than the duty imposed on prosecutors to prove a criminal defendant's guilt "beyond a reasonable doubt."  Even for foreigners who have already been granted admission, the noncitizen (whose alienage the government has proven) must establish by clear and convincing evidence that he or she is in the U.S. based on a lawful admission.  Only then is the government required to prove by clear and convincing evidence that the respondent is deportable.
• No Jury. Respondents in removal proceedings have no right to a jury trial.
• No government-paid legal counsel for the indigent or incapacitated. Unlike criminal defendants, respondents facing removal (even minors and the mentally impaired) who cannot afford a lawyer have no right to legal counsel at government expense.
• Late advisal of right to avoid self-incrimination. Immigrant respondents are only given Miranda warnings (by regulation rather than Constitutional guarantee) after a Notice to Appear before an immigration judge is served upon them.
• "Loosey-Goosey" rules of evidence. Hearsay evidence may be used against respondents in removal proceedings at the discretion of the immigration judge.
• Limited access to exculpatory evidence. Immigrant respondents are not automatically given access to evidence that may establish their innocence of the charges against them or their eligibility for relief from removal.  They must file Freedom of Information Act (FOIA) requests or request the immigration judge's permission to subpoena documents or witnesses. Even if such evidence is not made available to the respondent, the immigration judge can find the person removable and ineligible for various types of discretionary relief.
• In-person proceedings with court reporters transcribing every word not allowed. Immigration court cases are conducted without court reporters.  Instead, they are audio- or video-recorded. Too often this denies them justice.  Audio recorders are often turned on and off at the sometimes hasty flick of an immigration judge's finger -- at times thereby leaving out crucial factual information or legal argument. At other times, the recordings are garbled, incomprehensible or defective. This is usually discovered months or years later on appeal, thus requiring a remand to the immigration judge for rehearing.  Live video recording -- which occurs with detained immigrants -- often interferes with the effective representation of counsel or prevents a clear understanding of the proceedings by the person most affected, the respondent.
• Retroactive culpability. Immigrants can be removed from the U.S. for conduct that would not have warranted deportation when the act was committed.  This is because Congress can and often does change the grounds for immigration removal retroactively.  There is no Ex Post Facto rule prohibiting deportation for past non-culpable conduct.
• Immigration judges not subject to canons of judicial ethics. Although proposals to impose a judicial ethics code on immigration judges, they are not yet final. In criminal courts, however, judges are subject to ethical canons, patterned after the American Bar Association's Model Code of Judicial Conduct.

The civil-not-criminal distinction in removal proceedings may soon be meaningless.  If, as the prognosticators suggest, the Supreme Court upholds Section 3 of Arizona's S.B. 1070, which creates a the crime of being unlawfully present in the U.S. and of failing to register with the federal government, we may learn in a future case whether the lack of criminal defendants' rights in immigration proceedings can withstand Constitutional challenge. 

I'd rather see our leaders deservedly stake claim to the notion of American Exceptionalism and distinguish our nation "from the impoverished, traditionally undemocratic, brutal or catatonic countries in the world," by, whenever possible, granting immigrants the same legal rights as we give to criminal defendants.