Beyond "crimigration" and the civil-criminal dichotomy - applying Mathews v. Eldridge in the immigration context.

• Author: Nadadur, Ramanujan

1. INTRODUCTION

   Policies and regulations from the past decade underscore the need for strong constitutional safeguards in removal proceedings, which are administrative proceedings where an Immigration Judge adjudicates whether a noncitizen should be deported from the United States under the Immigration and Nationality Act (INA). Deportation has accelerated; the Obama Administration has removed nearly 400,000 noncitizens in each of the last three years. (1) Congress and the Executive have limited appellate review of final orders of removal (2) and sharply curtailed avenues of discretionary relief. (3) Immigration detention has increased significantly; Immigration and Customs Enforcement (ICE) detained a record total of 384,000 noncitizens in 2009, and 363,000 noncitizens in 2010. (4) Immigration law also has become more complex, with a maze of difficult regulations that govern the forms of relief available at different stages of the removal process. (5) Recognizing recent changes in immigration enforcement and the severity of deportation, this Note suggests that some groups of noncitizens in removal proceedings ought to have heightened procedural safeguards as a matter of constitutional law.

   In Padilla v. Kentucky, (6) the Supreme Court recently drew attention to the constitutional safeguards for noncitizens facing removal. The Court held that the Sixth Amendment right to effective assistance of counsel requires criminal defense attorneys to advise noncitizen clients about the immigration consequences of a guilty plea or conviction. (7) Over the past two years, this decision has led to a dramatic shift in criminal practice. It has prompted a series of advisories for defense attorneys who represent noncitizen clients; criminal defense offices have begun to create new positions staffed by immigration experts; (8) and state bar associations and other organizations have sponsored training sessions to instruct defense attorneys on immigration law. (9) Although Padilla focused on the rights of noncitizens in criminal proceedings, the Court also recognized the significant individual liberty interests for noncitizens facing removal, the decreasing avenues of immigration relief available for noncitizens, and the growing nexus between immigration law and criminal law, the latter of which grants strong constitutional protections to suspects and defendants. (10)

   Despite the recent changes to immigration law and language in Padilla recognizing the seriousness of deportation, noncitizens in removal proceedings continue to lack important procedural safeguards for a variety of reasons. Historically speaking, the Supreme Court considered deportation proceedings to be an intrinsic part of the U.S. government's sovereignty; the Court held that the government therefore retained the power to limit the procedural rights granted to noncitizens. (11) The expansion of procedural rights would also entail a significant financial burden on the state; the approximate cost of providing counsel to indigent noncitizens could be as much as $110 million per year. (12) Given the negative public perception towards those convicted of crimes, it is politically challenging to support greater procedural rights for noncitizens today; the Obama Administration has focused a significant part of its removal efforts on removing noncitizen criminals. (13) Moreover, the relative lack of procedural rights for noncitizens allows the government to enforce criminal or anti-terrorism priorities within an administrative system that does not require that the government extend litigants the rigorous protections associated with the criminal process. (14) The government, for example, can preventively detain a suspected terrorist for immigration violations and circumvent the pre-trial detention requirements from criminal law. (15)

   Accordingly, several notable procedural weaknesses persist in removal proceedings. First, indigent noncitizens do not have the right to court-appointed counsel, (16) a right that can be outcome-determinative given the complexity of immigration law. One recent study found that non-detained noncitizens in removal proceedings with counsel obtained relief in 74% of their cases, in contrast to the 13% success rate for non-detained noncitizens who proceeded pro se; detainees with counsel received relief in 18% of their cases, compared to the 3% success rate for detainees who proceeded pro se. (17) Secondly, noncitizens in removal proceedings also are not protected by the Fourth Amendment and the exclusionary rule. (18) Under current Supreme Court precedent, immigration enforcement officers are permitted to enter private residences without search warrants or consent, arrest or detain persons without warrants or probable cause, (19) and use racial profiling in immigration enforcement operations. (20) Thirdly, because there is no ex post facto protection in removal proceedings, noncitizens may be deported retroactively. (21) If Congress alters the grounds of deportation-which Congress has the plenary power to do (22)--the modified grounds are applicable to events that occurred prior to and subsequent to the congressional change. (23) Finally, the Department of Homeland Security (DHS) can initiate removal proceedings in any immigration court in the nation, even if a noncitizen has lived in a particular state or region for her entire life. (24)

   Many scholars have recognized these procedural weaknesses and argued that the Constitution requires heightened procedure for all noncitizens in removal proceedings, including access to some or all of these four procedural rights. The most recent incarnation of this argument, "crimigration," generally proceeds in two steps. Scholars begin with the assumption that there are two types of constitutional procedure in the United States, civil procedure and criminal procedure, the latter of which grants strong constitutional safeguards to suspects and defendants. They then argue that noncitizens in removal proceedings ought to have heightened procedural safeguards as a matter of constitutional law because removal proceedings are not civil but are criminal in nature. (25) This latter step can take many forms. Some scholars argue that deportation can be tantamount to a penalty, making removal proceedings a punitive criminal proceeding, rather than a corrective proceeding. (26) Others argue that immigration and criminal law require the same level of constitutional protections because the enforcement of immigration law is indistinguishable from criminal law; local police are increasingly collaborating with armed administrative immigration and customs officials to arrest and detain removable noncitizens. (27) A middle ground "crimigration" approach has gained some support since the Padilla decision. At least two scholars argue that because language in Padilla supports the principle that removal proceedings occupy a middle ground between the civil and the criminal, removal proceedings ought to afford noncitizens some (but not all) procedural features from the criminal process. (28)

   Since proponents of "crimigration" rely on the civil-criminal dichotomy in constitutional procedure, they often do not take into account the large body of scholarship documenting the breakdown of this dichotomy in practice. (29) Nominally civil proceedings can employ hybrid sanctioning that blends elements of the retributive (criminal) and restorative (civil) models. (30) The means that the state employs to enforce and govern criminal and other areas of law have converged. Officers from administrative agencies may cooperate with local police to enforce "civil" regulations promulgated by the very same administrative agencies. (31) Although one would ordinarily associate the loss of physical liberty with criminal proceedings, detention prior to, during, and after proceedings is common in both non-criminal and criminal proceedings. (32) Despite the flaws in the civil-criminal model, few scholars have provided an alternative theory of constitutional procedure. (33)

   Like "crimigration," this Note suggests that some groups of noncitizens in removal proceedings ought to have heightened procedural safeguards as a matter of constitutional law, including the right to counsel, the right against unreasonable searches and seizures, the right against ex post facto application of immigration law, and the right to have removal proceedings in the district in which the noncitizen resides. However, this Note moves beyond "crimigration" by recognizing that the civil-criminal procedural model is flawed and by proposing an alternate non-bifurcated theory of constitutional procedure based on the Fifth and Fourteenth Amendments' Due Process Clauses as interpreted in Mathews v. Eldridge. (34) Under this model, there are several specific procedural safeguards potentially available in any proceeding, such as the right to counsel, the right to a jury trial, or the right against unreasonable searches and seizures. In a given proceeding, the Due Process Clauses of the Fifth and Fourteenth Amendments (35) can require all, some, or none of these protections, depending on the balance between the three prongs of Mathews. (36) This model, which already describes the procedural safeguards constitutionally required in many types of proceedings, suggests that all proceedings exist across a single continuum, with a variable level of specific procedural safeguards required, based on the constitutional right to due process.

   This Note applies this theory of constitutional procedure to three groups of noncitizens: (1) those detained during and after removal proceedings, (2) those for whom removal may result in stigmatization and social exclusion in a country of origin, and (3) parents who have children in the United States. The balance of the Mathews factors for these three groups of noncitizens resembles the balance of the Mathews factors in other proceedings that grant...