Pleading the Fifth in Immigration Court: A Regulatory Proposal
98 WASH. U. L. REV. (2021 Forthcoming)
60 Pages Posted: 3 Nov 2020 Last revised: 9 Nov 2020
Date Written: November 3, 2020
Protections of noncitizens’ rights in immigration removal proceedings have remained minimal even as immigration enforcement has exponentially increased. Put differently, outside of immigration court, we treat noncitizens as if they are criminals, while inside it we fail to provide noncitizens the procedural safeguards normally afforded to those accused of crimes. An overlooked, but commonplace, problem in immigration court is the treatment of the constitutional right against self-incrimination. Two routine scenarios occur where noncitizens are asked to sacrifice their right against self-incrimination in immigration court. One involves testimony regarding conduct related to immigration status that may lead to prosecution for federal immigration violations, such as illegal entry, illegal reentry, or alien smuggling. The other involves testimony regarding any other potentially criminal activity, including when the noncitizen currently has pending charges in criminal court yet is expected to testify about the underlying facts during immigration court proceedings. In both of these circumstances, the immigration system puts noncitizens in the untenable position where they must either elect to waive the constitutional right not to self-incriminate and testify regardless of possible criminal consequences, or exercise their right to silence and risk the judge drawing an adverse inference that results in deportation.
The skewed incorporation of criminal norms into the immigration arena—a supposedly “civil” system—without a simultaneous expansion of procedures designed to protect and enforce noncitizens’ rights leads to disastrous results. Moreover, the lack of procedural fairness in removal proceedings exaggerates the imbalance of power between the federal government, with its immense resources, and the individuals it seeks to deport. Considering the so-called plenary powers granted to the executive and legislative branches of government, and attendant limited oversight by Article III courts, the courts are not likely to be the most efficient or far-reaching solution. Thus, this Article posits that, rather than utilizing the traditional judicial avenue for vindicating constitutional rights, federal agency regulatory rule-making is the best way forward. The Article then offers proposed regulatory language that is intended to provide a meaningful procedural vehicle through which noncitizens’ right against self-incrimination may be enforced. The proposed regulations provide that immigration judges must advise noncitizens of their right to remain silent, prohibit judges from drawing an adverse inference where noncitizens have pending criminal charges, clarify the procedures that must be followed in order to compel speech, and limit the government’s use of evidence obtained as a result of statutory or regulatory violations.
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