Excerpted From: Fatma Marouf, Immigration Law's Missing Presumption, 111 Georgetown Law Journal 983 (May, 2023) (403 Footnotes) (Full Document)


FatmaMaroufThe maxim “innocent until proven guilty” appears in Supreme Court cases dating back to 1895. Although the presumption of innocence does not appear in the U.S. Constitution, it is embedded in the principle of due process protected by the Fifth and Fourteenth Amendments. The Supreme Court has described the presumption as a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Although the Court considers a presumption of innocence necessary for a fair criminal trial, it is completely absent from quasi-criminal removal proceedings that can lead to deportation.

This Article examines how various components of immigration law collectively disrupt the notion that noncitizens may be innocent. From the investigation phase to detention and removal proceedings in immigration court, immigration law is designed to facilitate deportation, not to protect against erroneous decisions, no matter how catastrophic the consequences. This Article also goes one step further, arguing that immigration law erodes criminal law's well-established presumption of innocence.

In a criminal case, a defendant must be presumed innocent until the government proves each element of the alleged offense “beyond a reasonable doubt.” Although this entire concept is often described as the presumption of innocence, it actually includes two distinct components: first, the burden of proof is on the government, and, second, the standard of proof is “beyond a reasonable doubt.” The presumption of innocence refers to the burden and should not be collapsed with the standard of proof. This is a critical distinction to understand, especially when taking a broad view of the presumption that extends to the pretrial period.

As the level of government intrusion increases, so does the standard of proof that the government must satisfy. In applying this proportionality principle, it helps to conceptualize the presumption of innocence as a presumption of liberty. In criminal cases, the standard of proof increases from “reasonable suspicion” for a stop, to “probable cause” for an arrest and an indictment, to “beyond a reasonable doubt” for a conviction. Although the standard of proof varies, a presumption of innocence exists at each stage, placing some burden on the government.

In Bell v. Wolfish, the Court seemed to adopt a narrower view of the presumption of innocence, holding that it did not extend to the conditions of pretrial detention described in that case. But Wolfish did not hold that the presumption of innocence never applies outside of a criminal trial. In fact, both before and after Wolfish, the Supreme Court has applied the presumption of innocence in other contexts. A foundational case, In re Winship, applied the presumption of innocence, as well as the “beyond a reasonable doubt” standard of proof, to a civil juvenile adjudication. Winship suggests that the presumption may well have a role to play in quasi-criminal proceedings involving deportation, which the Court has described as a “‘drastic measure,’ often amounting to lifelong ‘banishment or exile.”’

More recently, in Nelson v. Colorado, the Supreme Court also offered a more expansive understanding of the presumption than in Wolfish. In Nelson, the Court struck down a Colorado statute that required individuals whose convictions had been reversed or vacated to file a civil lawsuit to recover costs, fees, and restitution paid pursuant to the conviction. The Court reasoned that “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.” In reaching this conclusion, the Court rejected Colorado's argument that the presumption was inapplicable because it applied only to criminal trials, noting that this argument “misapprehends Wolfish.”

Although removal proceedings have been classified as civil, they have far more in common with criminal proceedings than traditional civil litigation, which commonly involves monetary disputes between private parties. As Juliet Stumpf has explained, “Both immigration and criminal law marshal the sovereign power of the state to punish and to express societal condemnation for the individual offender.” The governmental power flexed by immigration authorities involves not only the final act of deportation but also everything leading up to it: stops, arrests, searches, interrogations, the filing of immigration charges, and detention. One of the main purposes of the presumption of innocence is to protect against the abuse of state power, precisely because it can inflict so much harm and stigma.

But the overlap is even deeper, because criminal arrests, charges, and convictions can all directly trigger the deportation process. That is why the Supreme Court recognized in Padilla v. Kentucky that deportation is “intimately related to the criminal process” and constitutes “an integral part--indeed, sometimes the most important part--of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” In fiscal year (FY) 2020, approximately half (49%) of the individuals removed from the United States had a prior criminal conviction. Of these so-called “criminal” removals, approximately 34% had been convicted of an immigration-related offense, such as illegal entry or illegal reentry.

The classification of deportation proceedings as civil rather than criminal dates back to cases interpreting Chinese exclusion laws enacted in the late 1800s. In Fong Yue Ting v. United States, the Court explained that a deportation order “is not a punishment for crime” but rather “a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which ... his continuing to reside here shall depend.” The Court applied the same reasoning to immigration detention in Wong Wing v. United States, which validated detention as a way to effectuate immigration laws, although it rejected imprisonment “at hard labor” without trial as unconstitutional punishment.

Over a century later, the Supreme Court continues to rely on these antiquated precedents in classifying immigration detention and deportation as civil penalties rather than punishment. While decisions such as Wolfish distinguish between “punitive” incarceration and “regulatory” detention in deciding if a penalty is criminal or civil, the Court has never fully explained why immigration detention and deportation fall on the regulatory side. Instead, the Court has relied on the civil nature of the underlying proceeding and “assume[d] that [removal proceedings] are nonpunitive in purpose and effect.” In one line of cases, the Court has also focused on legislative intent in determining whether a penalty is civil or criminal, although the Court has not yet applied that reasoning in the immigration context. At the end of the day, immigration detention and deportation serve the same basic purposes as criminal punishment-- “deterrence, incapacitation, and retribution.”

Despite the similarities and contiguity between criminal and removal proceedings, noncitizens in removal proceedings lack many of the procedural rights of criminal defendants. The Fifth Amendment Due Process Clause requires removal proceedings to be fundamentally fair, which necessitates a “full and fair hearing,” including notice and an opportunity to present evidence and cross-examine witnesses. Beyond that, however, many procedural protections familiar to the criminal process are missing: respondents do not have a right to counsel at government expense or a right to be present at their own hearings; the government does not always bear the burden of proof, and the standard of proof is not “beyond a reasonable doubt;” the rules of evidence do not apply; Miranda warnings normally are not required, nor can otherwise illegally obtained evidence be suppressed; and mentally incompetent individuals are allowed to stand trial.

Given removal proceedings' close ties to the criminal process, there has been surprisingly little conversation to date between scholars writing about the presumption of innocence and those analyzing the rights of immigrants. This Article helps fill that gap. Immigration scholars have already examined an array of constitutional rights that are relevant to a broad view of the presumption of innocence. For example, they have argued that immigration custody determinations are inconsistent with a presumption of liberty; urged that Miranda warnings should be provided in interrogations that elicit information about immigration status and nationality; and discussed flaws in immigration warrants and detainers that may violate the Fourth Amendment. They have also questioned the adequacy of immigration courts to adjudicate claims regarding constitutional violations during the investigative process.

Building on such a rich body of scholarship, this Article argues that immigration law hinders a presumption of innocence through its very design, thereby losing sight of innocence and fueling racialized perceptions of guilt. Part I explores the meaning of “innocence” in removal proceedings, explaining how this concept includes factual, legal, and normative innocence. While factual innocence in the immigration context focuses on someone's actual legal status or conduct, legal innocence focuses on whether someone is statutorily removable and/or eligible for relief. Factual and legal innocence are “conceptually similar and overlap[ping]” constructs. Normative innocence, in turn, pertains to our moral sensibilities of innocence and may include individuals who are neither factually nor legally innocent. For example, children may be considered normatively innocent even if they are unlawfully present and removable, with no path to legal status.

Additionally, Part I reveals how racialized perceptions of guilt dating back to the Chinese exclusion laws of the late 1800s eroded the notion of innocence in immigration matters early on and impacted the burden of proof in deportation cases. Part I also discusses contemporary empirical studies to demonstrate persistent associations between people of color and guilt. This Part includes studies showing that racial disadvantage in the criminal system is cumulative, becoming more pronounced if one considers multiple decision points rather than just one decision point. Building on that concept of cumulative racial disadvantage, Parts II and III examine how the presumption of innocence is impeded at multiple decision points in the immigration enforcement system, from investigations to detention, removal, and even post-conviction relief.

Part II focuses on the investigative process. It begins by taking a fresh look at three seminal Supreme Court cases addressing reasonable suspicion and race (Mexican ancestry/appearance): United States v. Brignoni-Ponce, United States v. Martinez-Fuerte, and INS v. Delgado. Viewing these cases through a new lens, the Article highlights how they ignore factual innocence, rendering invisible lawfully present individuals of Mexican ancestry. The majority opinions in these cases conceptualize “innocent” individuals as non-Hispanic whites and ignore the impact of the intrusive measures at issue on lawfully present individuals of Mexican descent. Factual innocence disappears like a needle in a haystack as the sheer scale of undocumented immigration overwhelms the Court.

Part II goes on to explain how other aspects of immigration investigations-- including watered-down warrant requirements, improper search and seizure tactics, and interrogations with no warnings to prevent self-incrimination-- raise constitutional concerns, yet the Supreme Court has refused to apply the exclusionary rule to removal proceedings. The absence of a suppression remedy undercuts the possibility of establishing legal innocence based on the government's inability to meet its burden of proof; it allows the government to rely on even unlawfully obtained admissions and evidence to facilitate removal.

Part III examines how a presumption of innocence is impeded after the investigation phase ends and removal proceedings are initiated. This Part discusses reversed and shifting burdens related to two critical decisions: detention and removal. The conventional view that the government bears the burden of proving removability by “clear and convincing” evidence actually applies only in limited circumstances. It does not apply in custody determinations, where noncitizens seeking release from detention bear the burden of showing that they are neither a flight risk nor a danger to the community. Additionally, large categories of noncitizens bear all or part of the burden of proof in removal proceedings. In some cases where the noncitizen bears the burden, the standard of proof is “clearly and beyond a doubt,” which has not even been defined. The last Section of Part III turns to immigration law's treatment of post-conviction relief, explaining that burdens of proof are often mixed up in analyzing vacated convictions and that a circuit split has emerged regarding who bears the burden when a noncitizen tries to reopen a case after a conviction is vacated.

Together, Parts I through III show that immigration law has been both designed and interpreted in a way that impedes formulating a presumption of innocence. In Part IV, the Article pushes the argument even further, asserting that immigration law also erodes criminal law's well-established presumption of innocence. Part IV provides three examples of how immigration law does this. First, removal proceedings force respondents with pending criminal charges to testify about the facts surrounding the alleged offense if they want to avoid deportation. Second, immigration law allows judges to order removal based on untested arrest reports and unproven charges. When individuals are deported with pending charges, they are denied the opportunity to prove themselves innocent in their criminal cases. Third, courts have expanded the use of the “circumstance-specific approach” to analyzing convictions, which requires a fact-specific analysis, as opposed to the traditional categorical approach, which is a legal analysis focused on the elements of the statute of conviction. This shift allows immigration judges to order deportation based on factual findings related to a crime that were never established in the criminal case.

Finally, Part V addresses possible objections to strengthening immigration law's presumption of innocence. The Article concludes that the time has come to rethink immigration law's missing presumption of innocence. Kevin Johnson has observed that “hypertechnical immigration laws still discriminate on the basis of race in ways that frequently are hidden or obscured.” By shedding light on how immigration law undermines a presumption of innocence, this Article reveals a concealed form of racial discrimination built into the statutory structure that has been reinforced by over a hundred years of case law.

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Immigration law's missing presumption of innocence functions as a form of covert racial discrimination in the immigration code. The time has come to rethink immigration law's design in order to fortify protections of factual, legal, and moral innocence. This Article has explained how a presumption of innocence is impeded at multiple decision points in the immigration process, from stops, arrests, searches, and interrogations at the investigative stage, to determinations about detention and removal, and the impact of post-conviction relief. The cumulative impact of this degradation reinforces racialized perceptions of criminality and guilt.

At the same time, immigration law diminishes criminal law's presumption of innocence by pressuring people to give potentially self-incriminating testimony in order to avoid deportation, relying on untested police reports and dropped charges in deciding who should be allowed to remain in the United States, and making factual findings about a crime that were never established in criminal court. This adds to the ever-growing evidence of bias against people of color in criminal proceedings by compromising the presumption of innocence in cases involving noncitizens.

Shedding light on these issues is the first step. Finding the political will to make changes is harder. But each branch of government has a role to play. Federal courts can take a harder look at decisions and doctrines that degrade the presumption of innocence in both immigration and criminal proceedings. Decisions rejecting a reversed burden of proof in immigration bond hearings are an important step in this direction, signaling that it is possible for courts to reexamine long-standing assumptions about who should bear the burden of proof. Congress, of course, can also reconsider burdens of proof at all of the decision points mentioned above. And DHS can adjust relevant regulatory requirements, as well as increase the use of prosecutorial discretion to protect normative innocence. As the nation grapples with how to create a more racially just society, the role of immigration law in perpetuating racial biases should not be overlooked.

Professor of Law, Texas A&M School of Law.