When Possible, Treat Immigrants As Criminal Defendants, Not As Criminals
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:
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 have been suggested, 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 the crimes 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.
[Bloggers Note: This post is authored jointly by 
I worry a lot about the future facing America's young adults. Saddled with Dickensian levels of college and grad-school debt, largely unable to find opportunities in their preferred careers, our young fear that they'll be relegated to work in low-paid, dead-end jobs. They and their parents are rightly concerned that the middle class is disappearing, the gulf between the ultra-rich and the poor is growing, and citizens coming of age today may never achieve the American Dream of economic progress.
Indeed, America's domestic demographic problem is in our control.
Cole Sear (played by Haley Joel Osment): I see dead people.
Ironically, many of the same putative indicators of fraud or technical immigration violations are attributes that describe the precise traits of “Business Startups” – the very entities which bipartisan supporters in Congress hope to “Jumpstart” by passing the JOBS Act. Newly established businesses typically employ less than 25 workers at the outset, initially gross less than $10 million per year, by definition have been in existence less than 10 years, and, just like larger firms, may choose the H-1B visa category to hire accountants, HR specialists, business analysts and workers in sales and advertising jobs for persons who hold only a bachelor’s degree.
Last week I ventured into an alternate reality. Like the child, Alice, descending through the rabbit hole, 
Love of children, however, only goes so far within the Beltway. Children raised in America but born on the wrong side of an arbitrary, human-drawn boundary are not recipients of otherwise bountiful political love. As several child lobbyists (U.S. citizens all), mustering arguments for the DREAM Act, told legislators and staffers alike last week, "it's the moral thing to do." These under-age advocates, however, didn't rely solely on the heart and soul. Citing a RAND study, they also pitched arguments to the head, noting that 
Worse yet, PD by itself, without a companion grant of 
As my week in Washington ended, I couldn't help but note the plentiful examples of our nation's founding, an action based on the same moral principles of "
[
Writing for The Hill, pundit Kathy Kemper just published a thoughtful piece on "
If we Americans are to maintain our unhaughty claim of Exceptionalism, that is, our heritage as a perpetually vibrant and constantly replenished nation of immigrants, then we must produce many more thought leaders who can win what Kemper describes as the "debate over immigration [which] gets to who we are and, more importantly, who we will be." The growing ranks of immigration thought leaders, however, must not, as Krugman warns, make "nebulous calls for centrism, [the] big cop-out. . . that only encourages more bad behavior." Rather, in my view, they must call out extremism wherever it surfaces and help direct our people to embrace the nation's true saving grace -- more enlightened and just immigration policies.
Not surprisingly, the Senate Judiciary Committee, Subcommittee on Immigration, Refugees and Border Security, will hold a hearing July 26, 2011 on “
I therefore propose that the $$$ Visa be established as a revenue-raising, jobs-creating vehicle that would permit the ultra-wealthy to help us by helping themselves. Here are the attributes of the $$$ Visa:
As suggested below and in a 
As early as last January, Rep. Lamar Smith, Chair of the House Judiciary Committee, 
Back in January, Rep. Smith characterized 
The sage of the current age, Wikipedia, defines the term "
The U.S. Supreme Court freed a herd of immigration "elephants [hiding] in a mousehole" on May 26. That's when 
