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Excerpted From: Tania N. Valdez, Pleading the Fifth in Immigration Court: A Regulatory Proposal, 98 Washington University Law Review 1343 (2021) (338 Footnotes) (Full Document)


TaniaNValdezThough deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty--at times a most serious one--cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.

The Fifth Amendment provides: “No person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ....” This negative right is alternately described as the right not to be compelled to be a witness against oneself, the right to remain silent, the right against self-incrimination, or the privilege against self-incrimination. This Article examines the extent to which the right has been deemed to apply in the context of removal proceedings. It argues that this constitutional protection should be more fully available--with some nuances--to noncitizens facing removal, due to the increasingly intertwined nature of criminal and immigration law.

At the time the Bill of Rights was written, immigration control was not yet a widely accepted, or agreed-upon, concept. Over time, the Supreme Court of the United States developed a theory that the power to exclude or expel was part of a nation's inherent sovereign rights. Thus, the Court endorsed the idea that Congress has the power to determine who is permitted to enter or remain within the United States, and immigration is therefore considered a system of civil regulation. On those grounds, federal courts have declined to extend a variety of procedural protections available in criminal proceedings to immigration proceedings.

However, clinging to a stagnant understanding of individuals' rights in an environment of increasingly frequent and severe immigration enforcement amplifies the possibility of serious and widespread injustices. This phenomenon has been described as the “asymmetric” incorporation of criminal norms into the immigration system. The overlap between criminal and immigration law (including immigration consequences for convictions, cooperation of local and state law enforcement with immigration authorities, and the inevitability of transfer to immigration custody following a criminal arrest) is increasing--a process many scholars refer to as “crimmigration.” Immigration enforcement officers' tactics largely mirror the law enforcement strategies used to arrest and prosecute people accused of crimes, and state and local law enforcement regularly engage--legally or not--in those immigration enforcement strategies. Additionally, through legislation, case precedent, and opinions issued by the Attorney General, immigrants are increasingly civilly penalized for lesser and lesser crimes, with convictions carrying greater consequences in immigration proceedings.

And yet, the right against self-incrimination has been deemed to have limited application because immigration proceedings are considered “civil.” Thus, noncitizens in immigration proceedings may choose to remain silent if they believe the testimony “might have a tendency to incriminate him or furnish proof of a link in a chain of evidence,” but not without legally sanctioned consequences. Namely, the immigration judge is permitted to draw an adverse inference from the noncitizen's silence. While an adverse inference is not sufficient for the government to meet its burden of proof on alienage or removability absent other evidence, adverse inferences greatly disadvantage noncitizens seeking bond or relief from removal. Noncitizens' right against self-incrimination is therefore undermined during immigration proceedings. The procedures currently available do not adequately account for the quasi-criminal nature of some aspects of removal proceedings, or for the fact that many noncitizens do not have legal representation.

Constitutional rights are meaningless without procedural vehicles through which they can be enforced. As the United States Supreme Court stated in Miranda v. Arizona, there must be “procedural safeguards effective to secure the privilege against self-incrimination.” A primary function of the right against self-incrimination is to prevent government overreach. Considering the immense powers of the government, the right against self-incrimination is critical in restoring some semblance of balance between the individual and the state.

Large numbers of people are affected by the immigration system every year. For example, in the five-year period from 2013-2017, there were more than 1.5 million people removed from the United States. In fiscal year 2019, the Department of Justice (DOJ) reported that there were 987,000 cases pending in the immigration courts. The Department of Homeland Security (DHS) filed 444,000 new cases in fiscal year 2019 alone, which marked the highest number of cases filed in a single year in United States history. In a system that is currently affecting nearly one million people, not to mention their families and broader communities, society should be concerned about whether the proceedings are being conducted fairly. In addition to general considerations of morality and individual dignity, procedural fairness is also critical to the perceived legitimacy of the legal system, which in turn affects whether people are likely to comply with the law.

Application of the right against self-incrimination in immigration court is an underexplored area. In 1990, Daniel Kanstroom wrote on the subject in the context of Immigration and Naturalization Service attorneys seeking to establish elements of their prima facie cases by compelling respondents to testify in immigration court. Kanstroom addressed the extent to which those practices raised constitutional and policy questions. Since Kanstroom's article, there have been numerous legal developments in both immigration proceedings and the scope of the right against self-incrimination in criminal law that call for further examination of these issues.

More recent scholarship has explored the right against self-incrimination during encounters with law enforcement. Jennifer M. Chacon raised the right against self-incrimination in terms of the limited application of both Fourth and Fifth Amendments in removal proceedings, illuminating how immigration courts were not designed, and are not equipped, to handle certain constitutional challenges. Violeta R. Chapin has called for witnesses to crimes to exercise the right to silence as an act of civil disobedience in response to increasing immigration enforcement.

This Article adds to the scholarly discourse by focusing on the effect of “pleading the Fifth” in immigration court. Part I describes how the Fifth Amendment right against self-incrimination is currently applied during court proceedings, both in criminal and general civil courts. Part II examines the current categorization of immigration removal proceedings under the “civil” umbrella and addresses the need for procedural safeguards in immigration court due to the increasing criminalization of immigration. Part III delves into the scope of the right against self-incrimination in immigration court, including an analysis of how the effect of “pleading the Fifth” may differ based on considerations such as the burdens of proof and the scenario in which the right is raised. Part IV highlights the specific deficiencies in courts' treatment of the right against self-incrimination in immigration proceedings and argues that, due to the quasi-criminal nature of such proceedings, noncitizens must be able to exercise the right more effectively. While this Article does not mean to imply that criminal proceedings provide a gold standard of procedural protections, it argues that a more robust application of this constitutional protection to noncitizens in removal proceedings would be far better than the current state of the law.

Lastly, to address the need for procedural safeguards in removal proceedings in an efficient and wide-reaching manner, Part V proposes new federal regulations that clarify, support, and expand the application of the right against self-incrimination in this context.

[. . .]

Although courts still consider immigration enforcement--including apprehension, detention, and removal proceedings--to be a civil system, there is an increasing overlap between criminal and immigration law. The expansion of immigration incarceration, particularly prolonged detention, increasing penalties for interactions with the criminal justice system (not limited to convictions), and aggressive criminal prosecution of immigration law violations necessitate examining the system with fresh eyes. Even the Supreme Court has recognized that deportation is becoming an ever more common penalty for criminal conduct.

The lack of adequate procedural protections, including misapplication of the right against self-incrimination, bears important consequences in immigration court. The scope of the Self-incrimination Clause should be recognized such that current protections are correctly enforced in protecting noncitizens' constitutional rights. Additionally, new regulations could go a long way in clarifying those rights and slightly expanding the right against self-incrimination to more closely match the protection afforded in criminal court, in recognition of the quasi-criminal aspects of the immigration enforcement scheme. Of course, this Article imagines that we continue in the current reality of immigration being viewed as a civil system. If removal proceedings are one day recognized as being at least quasi-criminal, the application of the right against self-incrimination would expand, and some of the regulations proposed here would likely become redundant.

Clinical Fellow, Immigration Law and Policy Clinic, University of Denver Sturm College of Law; Adjunct Professor, Clinic for Asylum, Refugee & Emigrant Services, Villanova University Charles Widger School of Law.

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