Excerpted From: Michael Kagan, Mass Surrender in Immigration Court, 14 UC Irvine Law Review 163 (January, 2024) (247 Footnotes) (Full Document)

MichaelKaganThere has been much criticism about the prevalence of plea bargaining in the American criminal justice system. But at least it is a bargain. It may be that too many people accept criminal convictions when the prosecution case might not stand up at trial. And it may be that most plea bargains are extracted from defendants through a system that puts them under duress by threatening to leave them in jail or penalize them with a harsher sentence if they insist on going to trial. And yet, criminal defendants are at least offered something for waiving their constitutional right to insist that the state prove its case. They get a lesser charge or a more favorable sentence. But in the American legal system governing deportation, not so much. When people face deportation, they usually let the government off the hook, without getting any bargain in return.

This Article is the first to document empirically how respondents in deportation proceedings in the United States respond to government charges. The answer is: they usually just concede their own deportability. They do not make the government submit evidence to support its case. Based on observations inside Immigration Court, this Article reports data indicating that there is effectively a mass voluntary surrender of fundamental rights occurring routinely in plain sight every day. Perhaps most notably, even when respondents had legal representation, they still admitted and conceded charges in nearly every case, without getting anything concrete in return. That is to say, even lawyers hired to defend people against deportation do not usually make the government put up a case. In the process, they effectively waive their clients' right to remain silent, a right that has been nominally protected in deportation proceedings, albeit less strongly than in criminal cases.

Although Immigration Court is usually open to the public, the filings in deportation proceedings are confidential, so I cannot directly review the filings and evidence of the cases. But I can report on how much time the cases take. As a direct consequence of respondents in Immigration Court conceding government charges without the slightest resistance, the grave question of whether a person can be deported from the United States can be adjudicated incredibly quickly. In one case reported in this Article, it took just ninety-two seconds for an immigration judge to find the government's charges to be sustained and the person removable from the country. In nearly every case observed, it took fewer minutes to decide that someone is deportable than are spent on commercials in a typical TV episode of Law and Order. In 94.6% of the cases observed, it took less than eighteen minutes for immigration judges (IJs) to find respondents deportable.

This mass surrender likely has multiple causes. One is that the government's burden of proof in Immigration Court is extremely low and, to a considerable extent, illusory. Although in principle the Department of Homeland Security (DHS) must prove that a person in removal proceedings should be deported, it can escape that burden by relying on rules that presume many people are deportable, especially people who are foreign born. These presumptions mean that the government's burden of proof in Immigration Court is somewhat a façade, a problem that has recently begun to attract more scholarly attention. The government's low burden of proof means that most people in removal proceedings would be found removable even if they denied all charges, and even if DHS brought forward no evidence indicating possible birth in a foreign country except for hearsay on a form riddled with obvious errors. Immigrants and their attorneys may thus reason that there is little to be gained by fighting at this stage of the proceedings, especially since many people can try to avoid deportation in other ways.

Another reason for mass surrender is that many people in removal proceedings do not have lawyers. Previous empirical research has shown that most people facing deportation do not have legal representation, and that one of the tangible impacts of giving immigrants lawyers is that they are more likely to assert plausible legal claims in Immigration Court. And yet, this also cannot explain the phenomenon. As the data presented in this Article illustrates, even with legal representation people almost always concede deportation without getting anything in return.

A final, significant reason for mass surrender in Immigration Court may be confused norms of practice that prevail among many immigration lawyers and in some immigration courts. There are training materials from the leading national bar association of immigration lawyers instructing that the government should be made to prove its case, but there are other training materials that say the opposite. Some immigration judges and some deportation prosecutors react with surprising hostility when immigrant defense lawyers deny charges for their clients. For some lawyers, admitting allegations may reflect a reasonable fear that taking a more aggressive posture in court would antagonize the immigration judge and the DHS attorney, upon whose discretion the client's fate (and the lawyer's law practice) may turn.

Confusion over what immigrant defense lawyers should do reflects a deeper confusion about the nature of deportation proceedings, specifically whether they are more like civil litigation or more like criminal trials. In the 1960s, the Supreme Court found that deportation is something in the middle, at least as far are the burden of proof is concerned. But what about the role of the defense lawyer in these proceedings? Under the Federal Rules of Civil Procedure, a lawyer for the defense would be mandated to admit objectively true allegations by the plaintiff. But in criminal defense, a vigorous defense would mean insisting on making the government prove its case. Which model better fits deportation defense? Do ethical obligations require an attorney to admit factual allegations against her client that she knows are true? I will argue that a zealous immigrant defense attorney would likely do the opposite--deny charges--but it is understandable that there would be normative confusion about the role lawyers should play in this context.

These problems have consequences. Both government and academic studies have found that the U.S. immigration enforcement system incorrectly detains and deports U.S. citizens. That fact ought to increase concern about whether the procedural safeguards and practices involved are adequate. More broadly, in any system adjudicating the deprivation of fundamental liberty, lawyers and judges have a critical role in making sure that the government has taken the required level of care. When the government is routinely able to escape from meeting a meaningful burden of proof, enforcement officers can cut corners with little consequence, creating risks of flawed decision-making in future cases.

In addition to reporting novel data about what actually happens inside Immigration Court, this Article offers multiple arguments as to why removal defense lawyers should have their clients deny removability much more often. First, I will suggest that there is a plausible argument that the burdens of proof of removability in Immigration Court are actually illegal. In particular, the foreign-birth presumption has breathtaking implications for millions of U.S. citizens and conflicts with the text of both statute and regulation. Created by the Board of Immigration Appeals, the foreign-birth presumption is nearly a half century old, but it has been subject to remarkably little judicial scrutiny. Such scrutiny is overdue. But even if this argument fails, I will argue that there are still good reasons to deny charges and force the DHS to prove its case. If nothing else, a respondent should not concede procedural rights without a compelling reason.

This Article proceeds as follows. Part I gives an overview of removal proceedings in Immigration Court. In Part 0, the Article reports new data from observation of the Las Vegas Immigration Court illustrating how immigrant respondents respond on the record to the allegations and charges levied against them by the DHS. In Part 0, the Article then examines the burdens of proof and evidentiary presumptions that make it extremely easy for DHS to obtain orders of removal without substantial evidence. Part I0 outlines critiques that might be used to challenge these burden-of-proof rules, especially the foreign-birth presumption. Part 0 discusses other reasons for respondents to deny and contest charges, while Part 0 identifies normative confusions about the role of immigration lawyers in Immigration Court that may deter some attorneys from doing so. In conclusion, the Article argues that, even assuming the validity of current burden-of-proof rules, immigrants would be better off denying charges far more often, and immigration judges should change the way they take pleadings from unrepresented respondents.

[. . .]

Immigration policy is a famously contentious, high stakes issue in American politics, in American courtrooms, and for millions of people throughout the country. Border policy and asylum law are common topics in high profile litigation in the federal courts. Immigration litigation constitutes a major portion of the dockets of several federal circuit courts of appeal. It is thus paradoxical that adjudication of the fundamental question of whether a person is legally deportable is anything but contentious most of the time. This is in part a product of the fact that the burden-of-proof rules governing this adjudication are slanted heavily in favor of deportation. But it is also because lawyers representing immigrants in these proceedings are not making the DHS even do the minimum to prove its case.

While deportation is a grave infringement on personal liberty and civil rights, the procedures set up to handle it treat the matter as if the stakes are far lower. The Supreme Court may have once said that deportation is a much more serious matter than a typical negligence case, but a typical negligence case is nevertheless heard by a court with more resources and with procedures that are considerably more methodical. A prominent immigration judge has compared removal proceedings to “death penalty cases heard in traffic court settings.” Rapid findings of removability with little argument from the parties and no evidence are indicative of that reality.

Several things need to change. First, there should be more scrutiny and reconsideration of the low and often illusory standards of proof used in removability determinations. The foreign-birth presumption is particularly deserving of closer scrutiny, though the problem is much broader. Even with current rules, immigration judges should review the way they take pleadings from pro se respondents. When I have observed these proceedings in court or reviewed transcripts for clients who were previously unrepresented, it is typical for judges to ask questions from respondents in a conversational manner, without telling respondents that answers to seemingly innocent questions like “Where were you born?” can serve as a confession in these proceedings. Immigration judges should warn pro se respondents that they are under no obligation to answer, that it is likely in their interest not to answer, and they should stress that “it may be in your interest to ask the government to prove its case. Would you like to do that?” If there is any hesitation, the immigration judge should enter a denial by default. Under no circumstances should an immigration judge reprimand an attorney for simply forcing DHS to meet its burden of proof. Nor should an immigration judge use a procedural motion, like a change of venue, as leverage to relieve the government of its burden of proof.

Clearly, immigration lawyers also need to reconsider their practice. Nonprofit organizations that develop training materials on immigrant legal defense should make contesting removability a greater focus. Even when there is little to be gained, attorneys should not waive substantive rights for their clients unless they can point to something worthwhile that they are getting in return. The Immigrant Legal Resource Center has issued a practice advisory that seems helpfully nuanced in explaining when it may be appropriate to advise a client to concede allegations and charges, while maintaining the norm that the government should usually be held to its burden. In general, pleadings should require a similar level of counseling with respondents in Immigration Court as a criminal guilty plea would require between defendants and defense attorneys. For all involved, the default in principle and in practice should be to leave the burden of proof with the government.

An attorney defending a person against a government seeking to banish him or her from the country needs to take on a posture and approach that is likely qualitatively and procedurally quite different from helping someone apply voluntarily for a government benefit. This shift in approach has been labeled a form of abolitionist lawyering. But a lawyer need not adopt a call to abolish the whole deportation system to accept the need for this kind of legal defense. Nor, for that matter, would a judge need to endorse this ideological orientation. One must only agree that deportation is a serious matter, and that when the government seeks to impose it on someone, the government ought to be put through its paces. This idea is not radical in American law generally. But it is radical in American immigration courts. That should change.

Joyce Mack Professor of Law and Director of the UNLV Immigration Clinic at the University of Nevada, Las Vegas, William S. Boyd School of Law.